Citation Nr: 21002475 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-38 919A DATE: January 13, 2021 ORDER Service connection for a lumbar spine disability is denied. Service connection for a cervical spine disability is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability preexisted his 1990/1991 period of active duty service and was not aggravated by such service. 2. The preponderance of the evidence is against finding that a cervical spine disability began during active service or is otherwise related to an in-service event, injury, or disease. 3. The Veteran’s hypertension preexisted his 1990/1991 period of active duty service and was not aggravated by such service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1111, 1113, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to May 1991, including prior service with the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board issued a decision reopening and denying the Veteran’s claim for service connection for a lumbar spine disability and a cervical spine disability. The Board remanded the matters related to service connection for hypertension. The Veteran then appealed the decision denying service connection for lumbar and cervical spine disabilities to the Court of Appeals for Veterans Claims (Court). Following a Joint Motion for Partial Remand (Joint Motion), the Board remanded the lumbar and cervical spine issues for additional development in November 2019. The Board remanded the lumbar and cervical spine issues again, along with the hypertension claim in May 2020. All three claims are now again before the Board. 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). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless thee is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease, or when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Among the diseases listed under § 3.309, is arthritis. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A Veteran may be competent in certain situations to provide a diagnosis of a simple condition; however, a Veteran generally is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for a lumbar spine disability The Veteran contends he injured his back when he received jolts from riding on rough terrain in a military vehicle. The presumption of soundness at entrance into military service, applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s lumbar spine disability preexisted his military service from December 1990 to May 1991, as private treatment records from October 1986 describe chronic back pain. However, in the absence of an induction examination, as is the case here, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). As such, the presumption of soundness cannot apply. Nevertheless, an entrance examination is not required for a claimant to receive the presumption of aggravation. Instead, a Veteran need only submit evidence that helps establish that there is an increase in disability during such service. 38 U.S.C. § 1153. If Veteran submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of service and a permanent increase in disability during a period of service, the claimant may take advantage of the presumption of aggravation. Hill, 28 Vet. App. 243, 246. In this case, to the extent the Veteran’s current lumbar spine disability pre-existed service, it is not shown to have increased in severity during his active service, and if it did not exist prior to service, the greater weight of the evidence is against the conclusion current lumbar spine disability was incurred in service. The December 2019 VA examination establishes the Veteran has degenerative joint and degenerative disc disease of the lumbar spine. The available records show the veteran was seen for back pain in 1986, described as “probably chronic,” but a specific diagnosis was not associated with that complaint. A periodic medical evaluation conducted for National Guard purposes dated in August 1990 revealed no abnormalities of the spine on clinical evaluation, and there are no medical entries reflecting any complaints during the Veteran’s service between December 1990 and May 1991. However, a report of Medical History prepared by the Veteran in April 1991 in connection with his separation from this period of active service shows he denied ever having recurrent back pain. He further indicated that he had never been a patient in any type of hospital, and that he never had any illness or injury other than those already noted on the form. Clinical evaluation at that time revealed no abnormalities of the spine. A periodic examination conducted in June 1996 in connection with the Veteran’s reserve service also shows there were no abnormalities of the spine noted on clinical evaluation at that time. In a contemporaneous report of medical history, the Veteran again denied ever having recurrent back pain, or ever being a patient in a hospital or having any illness or injury other than those already noted. As is evident from these records dating from 4 years prior to the active service in question to 5 years after that period, there is nothing suggesting the in-service incurrence of a back disease, injury, or event that could produce disability. Likewise, it is evident nothing supports the notion that any back disability as may have existed prior to this period of service, increased in severity during this period of service. A June 2002 neurology consultation is the earliest documentation that the veteran developed back pain while riding in a military vehicle during the Desert Storm time period that became severe enough to require hospitalization and bed rest. The document went on to note, however, that it was only in recent years that the pain returned following a motor vehicle accident. The neurologist did not link the Veteran’s current presentation to military service. A private treatment record dated the following year (in July 2003), shows the Veteran reported he had a back injury in the military in 1991 and has had pain on and off ever since. This physician did not offer any opinion as to the cause of the Veteran’s current complaints. In June 2014, the Veteran submitted a statement from a fellow service member who identified himself as the Veteran’s unit first sergeant. The Veteran was the unit’s commander. The first sergeant recalled an occasion when the Veteran was medevac’d from the field to the base hospital due to a back injury. Although not explicitly stated, the time period when this occurred apparently was during Desert Shield. The first sergeant advised he did not witness the injury, nor did he recall the circumstances of it, but that the Veteran returned to the unit sometime later. He made no mention of whether the Veteran expressed any further back complaints. The Veteran was afforded a VA examination in December 2019. The Veteran reported that riding in a Humvee over rough terrain aggravated his back pain for the duration of his active service in 1990 to 1991. The examiner considered it unlikely the Veteran’s current disability was incurred in service. Although acknowledging the statements concerning the Veteran’s hospitalization for back complaints during service, this conclusion was based largely on the content of the Veteran’s service records which failed to show any complaints or treatment. A follow-up medical opinion was obtained in June 2020, based upon a review of the Veteran’s records. Noting both the Veteran’s documented and reported history, and particularly the interval between 1991 and 2002,without any back treatment, it was concluded there was no nexus between the Veteran’s current disability and service. With respect to whether a pre-service disability was aggravated during the 1990-1991 period of service, the provider considered it plausible to have a temporary aggravation from riding on rough terrain, but she saw no permanent aggravation from this service, given the silence in the record during that period of service, and in the records dated for several years after that service. In this case, while the Veteran and the person with whom he served are competent to report the Veteran experienced back complaints or injury during his 1990/1991 period of service, they have neither claimed nor shown to have the expertise to establish a nexus between the Veteran’s current back disability and any such complaints or injury. Any suggestion of a nexus by them is not probative of that matter. As set out above, the records contemporaneous with the 1990/1991 period of service, and for many years thereafter, fail to show any back complaints, and include normal findings on clinical evaluation. They also show the Veteran specifically denied having any recurrent back complaints. This weighs against the claim any current disability was aggravated by this service, or was incurred during this service. Lastly, none of the medical opinions of record link the Veteran’s current disability with his military service. Notably, the 2020 opinion considered the Veteran’s reported history and acknowledged it was at least plausible a pre-service disability could have had a temporary aggravation during service due to riding over rough terrain. Nevertheless, she found the overall record did not reflect a permanent aggravation occurred during service, or that there was a nexus between the Veteran’s current disability and service. Under the circumstances of this case, the greater weight of the evidence is against the claim, and service connection for a low back disability is denied. Service connection for a cervical spine disability The Veteran contends that he injured his neck by the same Humvee rides over rough terrain during service that he contends caused his current low back disability. 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 or disease. The Board concludes that, while the Veteran has a diagnosis of degenerative arthritis of the spine and intervertebral disc syndrome, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury or disease. As indicated above, none of the service treatment records reflect the presence of any neck complaints or injury, and none are seen in any post service treatment records until many years after service. A December 2019 VA examiner opined that the Veteran’s cervical spine condition was less likely than not incurred in or caused by an in-service injury, to include bumpy rides on a Humvee. Although the opinion noted the Veteran reported developing neck pain and numbness in his left shoulder in service but did not seek treatment at that time, since the STRs were silent for complaints of neck pain, the 1991 separation examination did not show a chronic neck condition during service, and medical records first show complaints of neck pain in 2015, which is 24 years after service separation, the examiner found a nexus could not be established. A June 2020 medical opinion similarly found the Veteran’s neck condition was less likely than not incurred in or caused by service. The provider acknowledged the lay statements of record, but concluded that since there was no medical documentation of any neck complaints until 2015, (which is nearly a quarter century after service), it was unlikely the disability had been caused by service. While the Veteran is competent to report having experienced symptoms of neck pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disability. The issue is medically complex, as it requires interpretation of complicated diagnostic medical imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds that the Veteran’s reported history of continued symptomatology of neck pain since active service, while competent, is accorded little weight given his service records that show the neck had no abnormalities on clinical evaluation. His report is insufficient by itself to support a relationship between his current neck disorder and active service. The Board concludes that the preponderance of the evidence is against the claim for service connection for a cervical spine disorder, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. Service connection for Hypertension The Veteran’s August 1990 periodic examination for his Army National Guard service shows he was diagnosed to have hypertension at that time. Thus, it existed prior to his December 1990 entrance into active service. As the condition pre-existed service, and there was no service entrance examination prior to the 1990-1991 period of service, the presumption of soundness does not apply as discussed above in the context of the lumbar spine disability claim. The May 2020 Board remand requested a medical opinion to address whether hypertension was aggravated by service. A June 2020 examiner wrote that she had reviewed the claims file, acknowledged blood pressure fluctuations can occur and are consistent with the natural progression of the condition, but saw no evidence of aggravation in the Veteran’s case. His blood pressure was 134/88 when he separated from service in 1991, (it was higher at 160/106 in August 1990 before entering that 1990/1991 period of service) and there was no evidence of hypertension complications or end organ damage. She concluded there was no evidence of aggravation beyond natural progression identified. As this opinion is based on a review of the record, is consistent with that record, and explains the conclusion, it is probative. As there are no contrary medical opinions, and the Veteran is not shown to possess medical expertise as to accord any of his opinions the same weight as the medical opinion, the Board finds the greater weight of the evidence is against the claim. Accordingly, the appeal for service connection for hypertension is denied. (Continued on the next page)   In reaching this conclusion, the Board notes the June 2020 opinion was written in the section of the examination report that addresses direct service connection, rather than aggravation of a pre-service disability. Since the opinion was otherwise clear, and complete, that clerical misstep is considered harmless. Likewise, in its prior remand, the Board sought an opinion to be expressed with a greater degree of medical certainty than was necessary. As the opinion that was obtained corresponds to the legal requirements for deciding the appeal, further opinion is not warranted. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.