Citation Nr: 21002213 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-61 587 DATE: January 13, 2021 ORDER Entitlement to service connection for thoracolumbar spine disability is granted. Entitlement to service connection for cervical spine disability is denied. FINDINGS OF FACT 1. Injury of the Veteran’s mid and lower back during a period of active duty for training (ADT) resulted in a thoracolumbar spine disability. 2. Despite injury of the Veteran’s back during an ADT period, he does not currently have chronic neck disability. CONCLUSIONS OF LAW 1. Thoracolumbar spine disability was incurred in service. 38 U.S.C. §§ 101(24), 106, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2019). 2. No chronic cervical spine disability was incurred or aggravated in service. 38 U.S.C. §§ 101(24), 106, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had National Guard service from June 1980 to December 1986. He served on active duty, for basic training, from August 1980 to November 1980. National Guard service typically includes annual two-week periods of ADT and monthly weekends of inactive duty training (IDT). The Veteran’s claims file contains the dates of his ADT periods in 1981 to 1986. One of those ADT periods was from May 23 to June 6, 1981. In a June 2016 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for disabilities of the Veteran’s lower back and upper back. The Veteran appealed those denials to the Board of Veterans’ Appeals (Board). In March 2020 the Board remanded the lower back and upper back disability service connection claims to the RO for additional action. The RO took additional action and returned the claims to the Board for adjudication. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38U.S.C. §1131; 38C.F.R. §3.303. Service connection may be granted for disability resulting from disease or injury incurred during ADT, or for injuries suffered during inactive duty training (IDT). See 38U.S.C. §§101(24), 106. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Back disability The Veteran reports that in June 1981, during an ADT period, he sustained back injury. He contends that the injury was followed by lower and upper back problems that continued after that ADT period and through the present. On June 3, 1981, the Veteran had treatment at a service facility. He reported that he pulled a muscle while moving a table the night before. He stated that presently he could not bend over. The treating clinician’s impression was muscle strain. The clinician prescribed the Veteran Robaxin and Tylenol for discomfort and returned him to duty. In February 1984 the Veteran had a periodic National Guard examination. He marked no for history of recurrent back pain. The examiner marked normal for the conditions of his spine and neck. In February 2016 the Veteran submitted a claim for service connection for disorders including lower and upper back problems. In private treatment in August 2016, the Veteran reported persistent low back pain. Imaging of his lumbar spine showed mild degenerative changes and minimal anterolisthesis. A clinician diagnosed lumbago with left radiculopathy. In VA treatment in August 2016, the Veteran reported problems with his back. In December 2016 he related having low back pain for years, and presently having acute worsening of that pain. A clinician found mild tenderness and muscle spasm in his low back. Spine x-rays showed degenerative changes in the L2 to L5 vertebrae, and prominent endplate marginal spurring at T11-T12. In January 2017 the Veteran was seen for chronic low back pain, present for several years and much worse recently. In February 2017 he was seen for pain in his upper back and lumbar area. In March 2017 he reported chronic lumbar pain with frequent flare-ups. In June 2017 he stated that back pain began 20 to 25 years ago. Ongoing lower back pain was noted in July to September 2017. In VA treatment in January and February 2018, the Veteran reported back pain. In August 2018 he reported back pain for years. In October 2018 he had emergency room and primary care visits for low back pain radiating down the left leg to the foot. In private orthopedic treatment in February 2019, the Veteran reported back and leg pain. The physician found lumbosacral spondylosis and left side sciatica. In April through July 2019, the Veteran continued to report low back pain. Lumbar spine x-rays in June 2019 and MRI in July 2019 showed lumbar spine degeneration. In October 2019 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. The Veteran indicated that during his 1981 ADT he sustained lower back injury. He related that after the treatment in service he treated lower back problems himself, with over-the-counter medication. He stated that he was motivated to continue in National Guard service. He indicated that he had not had other lower back injury after the 1981 injury. On VA examination on April 2020, the Veteran reported that in service in 1981, while moving tables, he experienced sudden pain in his lower and middle back. He stated that he had treatment the next day and was diagnosed with back strain. He reported that since that injury he continued to experience upper and lower back pain. He stated that he treated pain conservatively, with medication. He reported that presently his lower and upper back pain was constant and burning. He stated that the pain was worse upon awakening. The examining nurse practitioner reviewed the Veteran’s claims file. Examination showed limitation of motion of the thoracolumbar spine, and pain on motion. The examiner reviewed imaging of the lumbar and thoracic areas. The examiner found that the Veteran had degenerative disc disease and spinal stenosis of the lumbar spine and degenerative arthritis of the thoracic spine. The examiner expressed the opinion that the current lumbar and thoracic disorders were less likely than not incurred in service. In explanation, the examiner stated that, after the 1981 treatment, there was no record of medical treatment for lower back complaints until many years after service. The examiner concluded that the strain in service was acute, and that his current disorders were not linked to that injury. In August 2020 the Veteran wrote that in the April 2020 VA examination the examiner did not use a goniometer to measure the ranges of motion of his back. He asserted that she wrote down ranges of motion that were not true. The Veteran submitted in August 2020 a medical journal article on chronic back pain. The article discusses how single trauma or cumulative microtrauma of the back can cause injuries of ligaments. In August 2020, private physician N. Y. E, D.O., completed a VA disability benefits questionnaire (DBQ) about the Veteran’s thoracolumbar spine. Dr. E. reviewed the Veteran’s records and examined him. The Veteran related his injury and treatment in June 1981. He stated that he had treatment in 1987 and 1993 for back pain. He reported current symptoms of constant pain and limitation of motion. Dr. E. found limitation of motion and pain with motion. Dr. E. found that the Veteran had low back strain, degenerative disc disease, and spinal stenosis. Dr. E. expressed the opinion that the Veteran’s current lumbar spine conditions are at least as likely as not related to his June 1981 injury. She explained that bending, lifting, and twisting injuries can strain ligaments. She stated that there is a chance that a lifting and twisting injury can cause permanent damage. She noted that after the 1981 injury the Veteran continued to complain of pain. She also noted that with later treatment disc and spine disorders were diagnosed. In October 2020 the Veteran wrote that his injury in service in June 1981 produced very severe pain. He stated that he had experienced back problems ever since. The Veteran’s wife wrote that the Veteran sustained a back injury in National Guard service in the 1980s. She stated that the back injury had continued through the present. The Veteran’s daughter recalled that during her childhood her father was frequently between jobs. She stated that she came to realize that pain made him unable to perform manual labor. The June 1981 treatment record shows the Veteran’s back injury during an ADT period. Medical records show his current thoracolumbar spine disorders. The question of service connection turns on his claim that his established back pain and problems during ACDUTRA in June 1981 continued from then through the present. His wife has corroborated that continuity. The VA examiner opined against continuity, apparently more persuaded by a lack of further treatment until many years later. Dr. E. accepted continuity, apparently more persuaded by the Veteran’s account, and by the chances of a medical connection between the 1981 injury and the current disorders. The Board finds the recent accounts of continuity reasonably convincing. Those accounts balance the lack of earlier evidence supporting continuity. On careful consideration, and resolving reasonable doubt in the Veteran’s favor, the Board accepts that mid and lower back symptoms and problems continued after the 1981 injury. The Board grants service connection for his thoracolumbar spine disorders. 1. Neck disability The Veteran reports that during his May to June 1981 ADT period he sustained injury. He contends that the injury was followed by upper back problems that continued after that ADT period and through the present. In August 2018 the Veteran reported a motor vehicle accident and recurrent pain in his lower neck pain with movement. A clinician noted tenderness in the Veteran’s neck. His neck had full ranges of motion. The clinician’s assessment was cervical strain. In private orthopedic treatment in February 2019, the Veteran reported neck and arm pain. In the October 2019 Board hearing, the Veteran indicated that during ADT in 1981 he sustained injury of both his lower back and his neck. On VA examination in April 2020, the Veteran reported back injury in service in 1981. He related ongoing back and neck problems from then forward. On examination his cervical spine had full ranges of motion, with no evidence of pain on motion. The examiner found that the Veteran did not have any current disorder of the cervical spine. The June 1981 treatment record is not clear as to the areas of the Veteran’s back affected by the injury. The assembled medical evidence does not help to show chronic problems in the Veteran’s cervical spine or neck. The VA examiner found no current disorder. The greater persuasive weight of the evidence in against a current chronic cervical spine disorder. In the absence of a current cervical spine disability, the Board denies service connection. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kunz, Kirsten 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.