Citation Nr: 21000714 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 19-29 294 DATE: January 6, 2021 ORDER Entitlement to service connection for a back condition is denied. Entitlement to service connection for a neck condition is denied. Entitlement to service connection for cervical radiculopathy (associated with the neck) is denied. FINDING OF FACT Disabilities of the spine and radiculopathy, were not documented during service, radiculopathy and arthritis were not shown within one year of separation from service, and the current spine and radicular disorders, are not shown to be related to any aspect of the Veteran’s service, including environmental exposures therein. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1118, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a neck condition have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1118, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for cervical radiculopathy have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1118, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to April 1994, and from June 1995 to August 1996. In April 2020, the Board remanded the appeal for additional development. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A “qualifying chronic disability” for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are ‘medically unexplained chronic multisymptom illnesses’ as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The Board notes that the Veteran has previously been conceded exposure to environmental hazards during service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e). Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 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 back condition 2. Entitlement to service connection for a neck condition 3. Entitlement to service connection for cervical radiculopathy The Veteran contends that he developed his current back and neck disabilities with radiculopathy as a result of service, to include as manifestations of an undiagnosed illness resulting from his service during the Gulf War. Initially, the Board notes that the competent evidence of record confirms that the Veteran has been treated for chronic back and neck pain and he has been diagnosed with spondylosis, scoliosis and degenerative joint and disc disease of the spine. He has also been diagnosed with cervical radiculopathy. Thus his complaints of joint pain and associated radicular symptoms have been evaluated and have been attributed to a medical diagnosis; therefore, the Veteran has not been diagnosed with an “undiagnosed illness” or a medically unexplained chronic multisymptom illnesses, and Persian Gulf presumptions under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not apply. Simply stated, the Veteran has a diagnosed back and neck disability. The next question the Board has is if these current problems are related to service. The service treatment records noted complaints of back pain associated with running in April 1990. He was diagnosed with paralumbar strain. In a March 1994 report of medical history, the Veteran endorsed a history of recurrent back pain with a history of back injury in 1988. However, in a November 1994 National Guard report of medical history the Veteran denied a history of recurrent back pain and the spine was clinically evaluated as normal. In an April 2008 report of medical history, the Veteran denied a history of recurrent back pain and the spine was clinically evaluated as normal. After service, private treatment records in September 2013, show that he was seen for a shoulder strain with associated neck pain. He exhibited full range of motion of the neck. In August 2014, the Veteran was seen for neck and left shoulder pain. The Veteran reported onset of pain in July 2014. He denied a history of trauma. Imaging studies of the spine revealed spondylosis, degenerative changes and radiculopathy. The clinician noted that clinical impressions of thoracic back pain and lumbago were also appropriate at that time. The Veteran was not shown to have arthritis of the spine or radiculopathy in service or within one year following discharge from service, as such, service connection cannot be established for arthritis or radiculopathy on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Following service discharge in 1996, there is no evidence of treatment for the spine or for radiculopathy until 2014, more than 18 years after service discharge. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service and post-service treatment records. Significantly, as noted above, medical reports in 1994 and 2008 reflect that the Veteran’s spine and upper and lower extremities were clinically evaluated as normal. Thus, the Veteran has not adequately shown that his present complaints of neck, back and radicular pain continued since service for two decades and his assertions are inconsistent with the service treatment records and post-service medical evidence. Beyond this, as noted above, at some points the Veteran himself provides evidence against this finding. On the question of a nexus between the claimed disabilities and service, there is evidence both for and against the claim. A June 2019 letter from a private physician noted that the after the Persian Gulf war the Veteran was diagnosed with degenerative changes of the spine and cervical radiculopathy. The physician opined that Veteran’s chronic pain was more than likely a result of a continuation of previous diagnoses identified as a part of the Persian Gulf war syndrome. The opinion is awkwardly worded insofar as it appears to relate the Veteran’s diagnoses to an undiagnosed illness or a medically unexplained chronic multisymptom illnesses. It is unclear from the opinion how the Veteran’s diagnoses of degenerative changes of the spine and radicular symptoms, diagnosed approximately 20 years after service, are in any way etiologically associated with his service, to include service in the Persian Gulf War. The blanket opinion provided no rationale. Accordingly, the opinion is afforded little probative value. On VA examination in June 2019, following a review of the claims file and an examination of the Veteran, a VA examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based the opinion on the finding that the service treatment records did not indicate any evidence of recurring or chronic complaints or treatment or injury to back. The Veteran underwent a VA examination in September 2020. He reported back problems that had onset in the military, around 1986-1987, as due to military training as a security policeman. He related onset of neck pain in 2013 associated with a left shoulder strain. The examiner opined that the claimed disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while the service treatment records documented back complaints in 1990 due to running, he was diagnosed with back strain and no neck complaints were recorded in service. There was no evidence of spine problems from 1990 to 2014, a 24 year gap of lack of information. Therefore, the Veteran’s diagnosed conditions of degenerative arthritis of the spine, thoracic and lumbar spine degenerative disc disease and degenerative joint disease, scoliosis of the thoracic spine and radiculopathy, were less likely incurred in or caused by the illness, event, or injury that occurred during service. The Board finds the opinions of the VA examiner in 2020 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current spine disability with associated radiculopathy as a result of service. The examiner’s findings were based on a review of the evidence, including the service treatment records and examination, which did not substantiate a finding that the Veteran sustained a chronic disability in service. The examiner considered the complete record and the Veteran’s contentions and provided an explanation as to why the evidence does not support a finding that his spine disorder was due to service, to include injuries incurred therein. Finally, the VA examiner’s opinion was internally consistent and consistent with other evidence of record and is of significant probative value. Consequently, the Board finds the 2020 VA medical opinion reports more probative and outweigh the findings of the private physician in June 2019. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In this regard, the Board must find that the service and post-service treatment records provide particular negative evidence against the claims. While the Veteran believes that his current spine disability and radiculopathy, are related to service, including service in the Persian Gulf War, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion with regard to these conditions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the diagnosis or etiology of his claimed disability is a matter that is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed disabilities is not competent medical evidence. Moreover, whether any injuries incurred in service are in any way related to his current disability or other joint or radicular disorders is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his current spine condition with radicular symptoms is not competent medical evidence. The Board finds the opinion of the VA examiner of record to be significantly more probative than the Veteran’s lay assertions. The Board believes that the post-service record in this case provides particularly negative evidence against the claims, indicating problems that began well after service and are not due to any aspect of the Veteran’s service, to include an undiagnosed illness. To the extent the Veteran’s cervical radiculopathy has been associated with the spine disorder, as service connection for a spine disability has not been established, there is no factual or legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. For the foregoing reasons, the preponderance of the evidence is against the claims. The benefit-of the-doubt doctrine is therefore not for application, and the Veteran’s claims of entitlement to service connection for a spine disability and radiculopathy, to include as due to an undiagnosed illness, must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.