Citation Nr: 21004307 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-23 897 DATE: January 26, 2021 ORDER Entitlement to service connection for degenerative arthritis is denied. Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for lumbar spine disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that degenerative arthritis was incurred in or aggravated by his active duty service. 2. The preponderance of the evidence is against finding that the Veteran’s cervical spine disability was incurred in or aggravated by his active duty service. 3. The preponderance of the evidence is against finding that the Veteran’s lumbar spine disability was incurred in or aggravated by his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to November 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. In February 2019 the Board remanded the claims in order to obtain outstanding service treatment records and post-service treatment records pertinent to the claims on appeal. On August 12, 2019 VA notified the Veteran that it had been determined that the requested service treatment records (STRS) could not be located and therefore were unavailable for review. The correspondence stated that all efforts to obtain the needed information have been exhausted, and based on these facts, it was determined that further attempts to obtain the records would be futile. The Board notes in September 2019 a request for information to include completed medical/dental records and entire personnel file at the National Personnel records Center (NPRC) was submitted, and on September 19, 2019 the response notes that all available personnel documents and/ or STRS were uploaded to VBMS on October 6, 2014. In addition, in September 2019 the Veteran returned his Form 21-4142- and Form 21-4142a, Authorization to Disclose Information to the VA, and General Release for Medical Provider Information to the VA. The Veteran also included a letter stating his Doctor from the Desert Pain Center is currently in prison, and is requesting that this Doctor not slow down his claim moving forward in a timely manner. In a May 2020 VA development letter, VA notified the Veteran of what evidence was still needed for his claim. In a corresponding May 13, 2020 phone call, the Veteran stated that the only PMR he submitted was on September 2019 for the Desert Pain Center in Las Vegas, NV, and that there are no other PMR to obtain in support of his appeal. See May 2020 Report of General Information. The Board finds substantial compliance with the February 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 1. Entitlement to service connection for degenerative arthritis is denied. 2. Entitlement to service connection for cervical spine disability is denied. 3. Entitlement to service connection for lumbar spine disability is denied. Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Additionally, where a veteran served for at least 90 days during a period of war, or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. The Veteran contends that his degenerative arthritis, cervical spine and lumbar spine conditions are related to a motor vehicle accident he had while in service. See June 2018 Statement in Support of Claim. The Veteran contends that the car he was driving malfunctioned and he hit a power pole. Id. 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 cervical spine degenerative disc disease/spondylosis, right cervical radiculopathy, and lumbar spine degenerative disc disease /degenerative joint disease, the probative evidence weighs against finding that these conditions began during service or are otherwise related to an in-service injury, event, or disease. The Board reviewed the file for evidence of treatment for cervical or lumbar spine conditions while in service and since. The Veteran’s service treatment records indeed show he was hospitalized in June 1983 from a motor vehicle accident where he lost control of his car and struck a telephone pole. See June 1983 Naval Hospital Narrative Summary and June 1983 Paradise Valley Hospital- Emergency Service Nursing Notes. The Veteran was not wearing a seatbelt and was taken by medevac to Paradise Valley Hospital. The Veteran was in ICU and upon discharge was diagnosed with cardiac contusion, status post sternal fracture, traumatic iritis- left eye, forehead abrasions, and a concussion. The records note c-spine precautions were taken, and the Veteran’s x-rays were noted as normal. See June 25, 1983 STR. The Veteran’s neck was noted as supple on examination with full range of motion and non-tender cervical spine. His back had full range of motion, non-tender to palpation, and his chest had tenderness over the lower midsternum with some splinting on deep inspiration. The Board notes there were no complaints, treatment, or diagnosis regarding the Veteran’s neck or back while in service. The Board notes a November 2007 VA- primary care note, shows the Veteran reported middle and upper back pain, however the Veteran did not attribute it to the motor vehicle accident from service, and the physician did not provide an opinion on the etiology of the Veteran’s back pain. The Board further notes the Veteran has made complaints and received treatment for his cervical and lumbar spine conditions after the 2007 time period, although a medical opinion connecting the Veteran’s current disabilities to service has not been made. See September 2018 Physician Telephone Note, September 2019 Medical Treatment Record- Non-Government Facility, August 2013 - December 2018 CAPRI, In April 2015 the Veteran was provided a VA examination where he was diagnosed with cervical spine degenerative disc disease/spondylosis, right cervical radiculopathy, and lumbar spine degenerative disc disease /degenerative joint disease. The examiner was asked whether the Veteran has a diagnosis of low back injury that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the motor vehicle accident in June 1983 during service). The examiner stated the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner’s rationale states the STR had no documentation (including notes from the MVA in June 24, 1983) of back injury or treatment. The examiner was also asked whether the Veteran has a diagnosis of cervical spine injury that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the motor vehicle accident in June 1983 during service). The examiner stated the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner’s rationale states the STR had no documentation (including notes from the MVA in June 24, 1983) of neck injury or treatment. The Board notes the August 2013 statements from the Veteran’s sisters regarding their brother’s conditions and accompanying their brother to the management clinic for back pain and shoulder pain. The Board affords these statements less weight as they do not give a clear sense of the time period in which the events they are describing occurred. To the extent the Veteran believes his neck and back conditions are related to an in-service injury, event, or disease, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case, because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In addition, the Board does not find the Veteran’s statements credible and does not accord the Veteran’s reported history much probative weight since he has not remained consistent as to when his injuries and complaints began. In the February 27, 2014 Kinesiotherapy Consultation, the Veteran stated his neck and back pain began in 1983, two months after his car accident. However, in the May 2015 Form 9, the Veteran states that he was in ICU for three days and stayed on hospital ward for about a month, stating his neck and lower back was treated during the hospital stay. As noted above, the Veteran’s hospital records state his x-rays were noted as normal, and the Veteran’s neck was noted as supple on examination with full range of motion and non-tender cervical spine. His back had full range of motion, non-tender to palpation. The service treatment records do not contain complaints or treatment for a neck or spine injury. In addition, the Veteran’s degenerative arthritis is not shown to have manifest itself to a degree of 10 percent or more within one year from the date of separation from service nor was it noted in service, therefore the chronic disease presumption, to include arthritis is not applicable. Consequently, the Board gives more probative weight to the April 2015 VA examiner’s opinion. Accordingly, due to a lack of probative evidence of a back or neck injury in service, or probative evidence of a medical nexus between the current disabilities and the Veteran’s service, the claims must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the probative evidence is against the Veteran’s claims, so that doctrine is not applicable. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.