Citation Nr: 21002290 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 06-23 826 DATE: January 13, 2021 ORDER Entitlement to service connection for a cervical spine (neck) disorder is denied. Entitlement to service connection for a thoracolumbar spine (back) disorder is granted. FINDINGS OF FACT 1. A neck disorder is not related to service or to a service-connected disability. 2. A back disorder is related to service. CONCLUSIONS OF LAW 1. The legal criteria for entitlement to service connection for a neck disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 2. The legal criteria for entitlement to service connection for a back disorder are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from May 1991 to February 1993. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2019 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 2011, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claim and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. The Board remanded the claim in March 2007 and October 2011 for additional evidentiary development. In a May 2013 decision, the Board denied the claim. The Veteran appealed that decision to the Veterans Court. In a November 2014 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s May 2013 decision, and remanded this issue back to the Board for additional development consistent with the Joint Motion. The Board remanded the claim in March 2015. In an August 2016 decision, the Board again denied the claim. The Veteran appealed that decision to the Veterans Court. In a June 2017 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s August 2016 decision, and remanded this issue back to the Board for additional development consistent with the Joint Motion. In a December 2017 decision, the Board again denied the claim. The Veteran appealed that decision to the Veterans Court. In an April 2019 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s December 2017 decision, and remanded this issue back to the Board for additional development consistent with the Joint Motion. The Board remanded the claim in February 2020. The appeal has since been returned to the Board for further appellate action. This issue has been developed as a single claim of entitlement to service connection for “a neck disorder and a back disorder.” The Board has bifurcated this issue as the claim involves distinct anatomical areas. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (bifurcation of a claim generally is within the Secretary’s discretion). Service Connection – Laws and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a presumptive chronic disease under 38 C.F.R. § 3.303(b), 3.307(a), 3.309(a), so there is no presumption available, and the provisions regarding continuity of symptomatology are not applicable. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a neck disorder. Entitlement to service connection for a back disorder. Service treatment records reflect that the Veteran was treated for lower, middle, and upper back pain from May 1992 to December 1992. In September 1992, he reported back pain for the prior five days. The pain radiated slightly anteriorly. The impression was muscular pain. On October 28, 1992, he complained of lower back pain for the prior month, noting that he was seen in September, but it had not improved. He noted that the pain was in his mid-back and that he experienced a popping sensation when lifting heavy objects as part of his duty. He was diagnosed with a muscle sprain, mid-back. In November 1992, he reported that his pain was still bad at night. The assigned diagnosis was ‘back pain.” During evaluation in December 1992, the Veteran reported a history of back pain, but no disabling condition was noted. Mobility was within normal limits on all planes with no pain on movement. Strength was 5/5 with no pain on resisted motion. There was no tenderness with palpation. The provider stated that the examination was ‘unremarkable,’ and the provider was unable to connect the Veteran’s symptoms of back pain to any objective finding. The Veteran was referred to physical therapy, and thereafter was referred to Psychiatry for evaluation. At the time of separation examination in January 1993, no diagnosis of a musculoskeletal disorder was assigned. The Veteran reported back pain in the portion of the medical history he completed, and the January 1993 report of medical history noted the Veteran’s complaints of recurrent back pain, not currently disabling (NCD). Post service, the earliest records associated with the claims file are the private records of a December 2001 hospitalization for treatment of a psychiatric disorder (Record 07/17/2006). The summary states that the admission was the Veteran’s first psychiatric hospitalization. The Veteran provided a brief medical history including a report of his knee injury during football in high school, but there is no notation that the Veteran reported back pain or a history of recurrent back pain. The summary noted a history of moderate asthma and use of inhalers. The Veteran reported that he worked for a family business in music for several years, returned to college in 1998, realized he could not play football at that level, became depressed, began using cocaine and became homeless. The Veteran reported that he was working fulltime in retail. Records from NOVA Behavioral Health dated from July 2003 through April 2004 and a June 2004 statement from NOVA Behavioral Health reflect that the Veteran was treated for a psychiatric disorder (Record 07/17/2006 at 14); (Record 03/01/2007). No treatment record from NOVA indicates that the Veteran reported a history of, complaints of or treatment of a back or neck disorder, nor does the June 2004 statement provide information about any disorder other than a psychiatric disorder. The report of a September 2005 VA psychiatric examination reflects that the Veteran reported having a lump and a twitch in his neck. The examination report includes notations regarding the Veteran’s employment and education post service, and his general medical problems, (asthma, knee injury) but there is no notation that the Veteran reported a history of, complaints of or treatment of a back or neck disorder (Record 09/02/2005). Two lengthy (10 page) evaluations completed by Community Services of Stark County in August 2005 and in July 2006 summarize the Veteran’s treatment from 2003 to 2006 and the findings in 2005. The August 2005 evaluation discloses that the Veteran had no limitation of activities of daily living except that he was unable to hold a job due to his mental illness. His medical history includes a notation that the Veteran had undergone knee surgery and he reported chronic neck pain that he attributed to his psychiatric disorders. In December 2005, he reported that he was having neck and back swelling, which was relieved by taking Seroquel. In March 2006, he reported that he did not have any neck pain or swelling. During the September 2008 VA examination of the Veteran’s neck, back and spine, the examiner noted the Veteran s reports of back pain in 1992, with no injury or trauma. The examiner noted the Veteran’s current report that his back pain was related to his psychiatric medication. The Veteran stated during the examination that back pain was well controlled when he took his psychiatric medication. During flare ups, there was no radiation of pain, and he did not require assistive devices. X-ray images identified a normal cervical spine and arthritis of the lumbar spine at L3-4. The examiner assigned diagnoses of cervical and lumbar strain. He opined that it was not likely that the Veteran’s diagnosed disorders were related to service, and were instead a naturally-occurring phenomenon. However, the examiner did not explain what was meant by the opinion that the diagnosed lumbar and cervical spine strain were “a naturally-occurring phenomenon.” No opinion as to the etiology or date of onset of lumbar spine arthritis was provided (Record 04/01/2009 at 9). In January 2013 the Veteran s private physician, JHM, DO, provided an opinion which states: I am currently treating [the Veteran] for cervical thoracic and lumbar sprains. I believe with a significant degree of medical certainty that his pain is due to aggravation of degenerative disc disease in these areas. It is likely, from records presented to me, that this reflects chronic pain relating back to injuries received while in the military dating back to his first presentation of symptoms on 11 Dec 92. His work then entailed repeated and rapid lifting even overhead, of heavy material while unloading helicopters. As mentioned this decision can be made with a reasonable degree of medical certainty (Record 01/30/2013). Following receipt of this opinion, the Board requested an expert medical opinion. A VITA reviewer, SVM, provided the following opinion in February 2013: In my opinion with the evidence that was provided to me I think it is less likely that his current cervical and lumbar spinal disorder originated during his active duty. There is a history of recurrent back pain during his stay in military. (sic) There is no evidence during that period to say that he had Degenerative Disc Disease. Degenerative disc disease is a diagnosis that is made based on imaging studies like X rays or MRI. There are no imaging studies during that period or a medical opinion saying that he might be suffering from Degenerative Disc Disease. Additionally as mentioned there are no medical records till (sic) 2008 that show follow (sic) of his back problems. He also mentions that he does not get these symptoms if he is on his psychiatric medications. That is atypical of Degenerative Disc Disease. Degenerative Disk Disease is a condition that affects most adults. The exact cause is not known, but aging, genetic predisposition, environmental factors, obesity, lack of exercise, occupation smoking etc. can play a role. Unless there is clear evidence in the form of imaging studies showing degenerated discs, a medical opinion and continued followup for the condition, I cannot associate this condition with his stay in the military with any certainty (Record 02/20/2013). December 2013 to November 2014 VA chiropractic and physical rehab notes reflect that the Veteran reported right upper back and lower neck pain that came and went and was worse with stress, which had been ongoing since service. He reported that the onset of such pain began after a combination of heavy lifting and a physical altercation whereby he may have thrown a washing machine, or someone may have injured him (Record 02/19/2015). June 2014 thoracic spine X-rays revealed age-indeterminate mild wedge compression deformity of multiple mid-thoracic vertebral bodies and mild degenerative disc changes throughout the mid and lower thoracic spine; it was noted, however, that the areas of pain the Veteran pointed out did not correlate well with location of the findings on the spine and per his own history came and went. In April 2016, the February 2013 VHA examiner provided an addendum report reflecting that, after reviewing the newly associated 1994-96 records of the University Hospitals of Cleveland and Cleveland Clinic Foundation Center for the spine, his previous opinion had not changed. He noted that a July 1994 “Adult ortho” note stated that the Veteran had had mid-back pain since 1992, which began after carrying a body up the stairs on a stretcher, and that the diagnosis made was of back muscle strain. He further noted that X-rays of the thoracic spine were advised, and the evaluating physician made a note suggesting that X-rays were negative for any pathology. The VHA examiner also noted a physical therapy note from November 1995 indicating that the Veteran complained of upper back and scapular pain for three years that had begun after lifting a safe. The examiner stated that, in his previous opinion, he had indicated that the diagnosis of degenerative disc disease was not made during the Veteran’s service, and that the newly-associated 1994-96 records did not indicate a diagnosis of degenerative disc disease; that there was a note in 1994 suggestive of a normal thoracic spine X-ray; and that, again, no further records of treatment until 2008 or a diagnosis made of degenerative disc disease made prior to 2008 was of record. Therefore, the examiner determined that his previous opinion stood (Record 04/29/2016). The Board denied these claims most recently in December 2017. The basis for the April 2019 Joint Motion was that the record raises the possibility that the Veteran has a neck and back pain disorder that is separate from, and present prior to, his diagnosed cervical and lumbar spine degenerative disc disease. This was based on the Veteran’s account of symptoms prior to his diagnosis of degenerative disc disease and upon opinion evidence that the Veteran’s neck and back pain were relieved by psychiatric medication and were therefore potentially secondary to his service-connected mental disorder. In response, the Board obtained a medical opinion. In April 2020, a VA examiner provided several opinions. First, she found that the Veteran's upper thoracic spine disorder was due to a lifting injury and reports of back pain in service. She noted the January 2013 opinion of the Veteran's private physician that his cervical pain is due to aggravation of degenerative disc disease in service. But she found that the cervical spine disorder was not caused or aggravated by events in service. The rationale was that, although the Veteran has a current neck diagnosis, the Veteran’s records do not reflect any in-service incurrence of a neck injury or neck disorder for which he received treatment in service, and the Veterans service treatment records from September to December 1992, and the Veteran’s January 1993 report of medical history for separation examination, reflect repeated complaints of low and mid back pain, but no reports of neck pain. Regarding the matter of secondary service connection for a cervical spine disorder, the examiner provided the opinion that the Veteran’s adjustment disorder with anxiety caused him to form somatic symptoms that are related to his affective disorder of anxiety. This explains how his pain was improved when he was administered second generation anti-psychotic, nonbenzodiazepine medication with a mechanism of action that is not known to antagonize pain, but clearly reduced anxiety produced by service connected psychiatric disorders (Record 08/20/2020). After a review of all of the evidence, the Board finds that the criteria for service connection for a back disorder are met. However, the criteria for service connection for a neck disorder are not met. The Board will not reiterate its reasons and bases regarding direct service connection as the parties to the joint motion did not find fault with the reasons and bases for direct service connection expressed in the December 2017 decision, which is publicly available, but specified that the evidence suggested a possible secondary service connection basis for service connection, as due to the service-connected mental disability. Based on the reasoning of the August 2020 VA medical opinion, the Board finds that there is no separate neck disorder. Rather the symptomatology experienced by the Veteran is symptomatology of a mental disorder which is fully contemplated in the Schedule of Ratings for Mental Disorders. See 38 C.F.R. § 4.130. The Veteran clearly has a neck disorder, diagnosed as arthritis or degenerative disc disease. However, the description used by the August 2020 examiner is of anxiety which is heightened by the nonservice-connected cervical spine arthritis. Anxiety is fully contemplated under Diagnostic Code 9440, which rates the service-connected mental disability. The Board observes that a somatoform disorder, as diagnosed by the August 2020 VA examiner is defined as a mental disorder characterized by symptoms suggesting a general medical condition but neither fully explained by a general medical condition, the direct effects of a psychoactive substance, or another mental disorder, nor under voluntary control. See Dorland's Illustrated Medical Dictionary 560 (31st ed. 2007). Thus, apart from the nonservice-connected arthritis, the only diagnosed condition affecting the neck is a mental disorder. All mental disorders are rated together under the same rating schedule. The Veteran is currently in receipt of a rating of 100 percent under the Schedule of Ratings for Mental Disorders. The Board finds that there is no separate disorder of the neck that is secondary to the service-connected mental disorder. There is nonservice-connected arthritis, and a service-connected mental disorder, which is already compensated at the maximum level allowable. In sum, the Board finds that the claimed neck disorder is not related to service or to any service-connected disability. In light of these findings of fact, the Board concludes that service connection for the claimed neck disorder is not warranted. 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, 1 Vet. App. at 53-56. In addition, the Board finds that a thoracolumbar spine disorder is related to complaints of back pain noted in service. Accordingly, service connection for a thoracolumbar spine disorder is warranted. As this represents the full benefit sought on appeal with respect to the thoracolumbar spine, there is no prejudice resulting from any deficiency in the duties to notify or assist. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.