Citation Nr: 21066419 Decision Date: 10/30/21 Archive Date: 10/30/21 DOCKET NO. 14-26 789 DATE: October 30, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbosacral spine disability is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran incurred a neck injury while on active service but there is no indication in the contemporaneous service treatment records that he lost consciousness at the time of this injury. 2. The record evidence shows that the Veteran's neck was normal at his separation physical examination in March 1983. 3. The record evidence shows that the Veteran's current cervical spine disability is not related to active service or any incident of service, to include as due to an in-service neck injury. 4. The record evidence shows that the Veteran's post-service complaints of low back pain behaviors do not result in functional impairment and cannot be considered a lumbosacral spine disability for VA adjudication purposes. 5. The record evidence shows that the Veteran does not experience any current lumbosacral spine disability, including as a result of his reported post-service complaints of low back pain behaviors, which could be attributed to active service. CONCLUSIONS OF LAW 1. The criteria for service connection a cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for service connection for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February to October 1979 in the U.S. Army and from April 1980 to April 1983 in the U.S. Navy. A videoconference Board hearing was held in May 2016 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In March 2017 and in July 2018, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives, to the extent possible. The Board directed that the AOJ confirm the Veteran's current mailing address of record and attempt to obtain updated treatment records for him. The requested records subsequently were associated with the claims file. The AOJ notified the Veteran in February 2013 correspondence that certain of his service treatment records were missing and not available for review. He was asked to provide copies of any service treatment records which were in his possession. He responded with additional records. Other service treatment records subsequently were associated with the claims file. In April 2017, VA Medical Centers in Houston, Texas, and in Anchorage, Alaska, notified the AOJ that no records for the Veteran dated prior to March 2012 were available. In cases where the Veteran's service treatment records (or other relevant records) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, the Board concludes that all available service treatment records and post-service treatment records for the Veteran have been obtained, it is reasonably certain that additional records do not exist, and further efforts to obtain them would be futile. The Board denied, in pertinent part, the currently appealed claims in July 2020. Both the Veteran, through his attorney, and VA's Office of General Counsel appealed the Board's July 2020 decision only to the extent that it denied service connection for a cervical spine disability and for a lumbosacral spine disability to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion). Both parties to the Joint Motion notified the Court that they otherwise were not appealing the Board's July 2020 decision; to that extent, the Board's July 2020 decision is now final. The Court granted the Joint Motion in June 2021, vacating and remanding only that part of the Board's July 2020 decision which denied service connection for a cervical spine disability and for a lumbosacral spine disability. The Board will address the concerns raised by the Joint Motion in the decision below. Service Connection 1. Entitlement to a cervical spine disability The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a cervical spine disability. The Veteran essentially contends that he incurred a cervical spine disability (which he characterized as a neck disability) as a result of an in-service injury and experienced continuous post-service disability. The more probative evidence of record does not support his assertions regarding an etiological link between his current cervical spine disability and active service. It shows instead that, although he injured his cervical spine (or neck) during active U.S. Navy service and sought treatment for a cervical spine disability several decades after his service separation, his current cervical spine disability is not related to active service or any incident of service, to include as due to the in-service neck injury. The Board notes initially that the available service treatment records show that, at a pre-enlistment physical examination in January 1979 prior to his entry on to active U.S. Army service, clinical evaluation of the Veteran was entirely normal. He denied all relevant pre-service medical history. At his U.S. Army separation physical examination in October 1979, clinical evaluation again was completely normal. Although he reported a medical history of a head injury, the in-service examiner who completed the medical history report did not discuss this reported medical history anywhere on this form. The Veteran's service treatment records from his period of U.S. Navy service show that, at a pre-enlistment physical examination in January 1980, prior to his entry on to active U.S. Navy service in April 1980, clinical evaluation of his head, face, neck, scalp, and spine was normal. He denied all relevant pre-service medical history. The in-service examiner stated, "No pertinent data disclosed from many positive items checked" on the form by the Veteran. On outpatient treatment on August 9, 1982, he complained of a neck injury "when he fell on [his] head from fall while wrestling." It was noted that, although he went to the emergency room (ER) at the time of this injury, no information from the ER was available for review. He had worn a cervical collar but denied any fracture to his cervical vertebrae. Physical examination showed no neurological or neuromuscular loss, and eyes were "ok." The assessment was cervical strain. He was advised to continue wearing a cervical collar. On August 17, 1982, he complained that his neck injury had not improved. His neck muscle still was very tender, and he experienced tenderness on range of motion testing. Physical examination showed no sensory loss, good grip strength, a good range of motion in the neck "but pain [with] movement to the left," and a swollen trapezius muscle on the left which was "tender to touch." The assessment was trapezius muscle strain which was not improving. He was placed on light duty for 7 days. At the Veteran's U.S. Navy separation physical examination in March 1983, clinical evaluation of his head, face, neck, scalp, and spine was normal. He complained of "ulcer-like" symptoms. He was advised to follow up with VA for upper gastrointestinal problems. When the Veteran filed his original compensation claim in December 1997, he claimed service connection for a respiratory disorder only, which he noted began in 1979. When he next contacted VA to initiate a claim for benefits, it was in May 2012. At that time, the Veteran asserted that he had a neck condition that began in 1982. In a December 2012 written statement, the Veteran described an injury to his neck from a truck while in service. He stated that it took years before he was able to lay his head down without severe pain. In a March 2013 written statement, the Veteran indicated that he had neck problems ever since the trunk injury in service. The October 2013 written statement asserts that he left service with his neck condition. In an October 2015 written statement, the Veteran asserted that he was hit by a trunk, slamming his left shoulder and head into a steel bulkhead and was knocked unconscious for a minute or two. He went to the medic the next morning and was told he was bruised and given Tylenol. While the Veteran now may allege that he has had neck pain or symptomatology since his accident in service, the more probative evidence weighs against this assertion. The Veteran contends in various written statements that he filed a claim for this benefit in 1986. However, the claims file reflects that this did not occur. Instead, the Veteran filed his original compensation claim in December 1997, he indicated that he had never previously filed a claim for disability compensation. In addition, the Veteran filed at that time for a respiratory disability only. The absence of a claim related to the neck, when the Veteran is otherwise affirmatively seeking benefits for an unrelated disorder, constitutes negative evidence with regard to whether he had a neck disorder at that time that he believed began during service. In addition, the Veteran's neck was examined upon separation and was normal at that time. No notation regarding the neck was made on any document associated with separation. This contemporaneous evidence renders more recent statements asserting that the neck symptoms have been present to service unreliable and not credible. The only evidence of record that asserts that neck symptoms have been present since separation or that relates a current neck disorder to the Veteran's service are the Veteran's own statements. In addition, the varying accounts of whether and how long the Veteran lost consciousness during service calls into question his recollection of those events. Furthermore, although he has reported in recent years (since he filed his VA disability compensation claim) that he injured his neck while onboard a U.S. Navy ship, his available service treatment records show that, at his U.S. Army separation physical examination in October 1979, he reported an in-service head injury during his U.S. Army service. Clinical evaluation of the Veteran was completely normal at that time. When he was examined for purposes of U.S. Navy service approximately 3 months later at a January 1980 pre-enlistment physical examination, however, he denied all relevant pre-service medical history (including any history of a head injury while in the U.S. Army). The Board finds it highly significant that clinical evaluation of the Veteran was completely normal when he separated from U.S. Army service in October 1979 and the January 1980 in-service clinician found nothing "pertinent" in the Veteran's reported medical history which did not include any reported head injury while in the U.S. Army. On VA neck (cervical spine) conditions Disability Benefits Questionnaire (DBQ) in January 2013, the Veteran's complaints included a painful range of motion in the neck for the past several years, pain while sleeping, and neck stiffness. The VA examiner reviewed the Veteran's electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported injuring his neck "as a result of wrestling and [being] treated for cervical strain" during active service. "He indicates for the past thirty years [he] has not been treated for his neck condition." He also reported being involved in a post-service motor vehicle accident in 2010 when he "injured his back." He denied experiencing flare-ups of neck pain which impacted cervical spine function. Physical examination showed less movement than normal, excess fatigability, pain on movement, guarding or muscle spasm not resulting in an abnormal gait or spinal contour, 5/5 muscle strength, normal deep tendon reflexes and sensation, no radiculopathy, and no other neurologic abnormalities. He constantly used a cane for his lumbar spine condition. X-rays showed minimal degenerative changes. The VA examiner opined that it was less likely than not that the Veteran's current cervical spine disability is related to active service, including as due to the in-service fall which injured his head and resulted in treatment for cervical strain in 1982. The rationale for this opinion was based on a review of the Veteran's claims file. The rationale also was that the Veteran's current complaints of neck pain "for the past few years [are] secondary to cervical spine early degenerative disc disease." The rationale further was based on a review of relevant medical literature which did not show that cervical spine strain caused or permanently aggravated early degenerative disc disease after 30 years. The diagnosis was recurrent cervical spine strain by history. The Veteran testified at his May 2016 Board hearing that he had injured his neck and lost consciousness for up to 30 minutes at the time of this injury in August 1982. He testified that he had not been on light duty following his in-service injury and he "just tried to be a good soldier and keep going." He also testified that he was not certain how long he has lost consciousness, but he had been left by other sailors at the time of his injury, and then they returned after they had eaten lunch to find him still unconscious. See Board hearing transcript dated May 10, 2016, at pp. 3-5, 7-8. He testified further that, following active service, he had been employed in a variety of heavy labor positions, including for a concrete company where he worked on the company trucks for several years by changing the oil and oil filters and drove the company trucks for several years. He also testified further that, after leaving the concrete company, he worked in an oil refinery "as a helper and a journeyman's helper. And then I finally became a journeyman. That's a pipefitter. And I also tried truck driving for a few years. I was getting good in both of them but I went away." He finally testified that he was unable to work due to worsening symptoms of obstructive sleep apnea. Id., at pp. 10-11. Based on the above, the Board finds that the evidence weighs against finding that the Veteran's currently diagnosed cervical disorder is related to service. The Board recognizes that the Veteran's available service treatment records show that he injured his neck (or cervical spine) apparently while wrestling in April 1982 during active service. However, as explained above, the Veteran's recent statements regarding his injury in service or the symptomatology since that time are inconsistent with the more probative contemporaneous records and are, therefore, not reliable evidence. In determining whether statements submitted by a Veteran are credible, the Board notes that it may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board's findings here also are supported by the VA examiner's determination in January 2013 that the Veteran's recent complaints of cervical spine disability are related to early onset degenerative disc disease of the cervical spine and there was no support in the medical literature for finding that there was an etiological link between cervical spine strain which caused or permanently aggravated early degenerative disc disease after 30 years. For all of these reasons, the Board finds that the Veteran's lay assertions and hearing testimony regarding the facts and circumstances of his in-service neck injury and post-service complaints of or treatment for cervical spine disability are entitled to no probative value on the issue of whether a cervical spine disability is related to active service. The January 2013 VA examiner's opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"), and it is, for the reasons outlined above, given significantly more weight than the Veteran's unreliable statements. The Veteran has not identified or submitted any other evidence demonstrating his entitlement to service connection for a cervical spine disability. In summary, the Board finds that service connection for a cervical spine disability is not warranted. 2. Entitlement to a lumbosacral spine disability The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a lumbosacral spine disability. As discussed above, because he has not reported consistently the facts and circumstances surrounding his described in-service injury, his lay assertions and Board hearing testimony on this point cannot be deemed reliable. In addition, the Veteran has offered virtually no written or oral statements asserting that he injured his lumbar spine or low back during service. His claim that led to this appeal listed only the neck, anxiety, right shoulder, and lung as disabilities related to service. The RO seems to have inferred a claim regarding the low back and included it in the September 2013 rating decision. Even in a subsequent October 2015 written statement, the Veteran only noted his shoulders and head when discussing his injury with the falling trunk in service. During his hearing with the undersigned, the Veteran gave no more than a vague statement that his back was hurt in service. Given this and the Veteran's previously discussed inconsistent statements, the Board finds that there is no reliable evidence that the Veteran injured his low back during service. While he has very recently included his low back or lumbar spine when discussing his reported injury during service, all evidence dated earlier, to include earlier during this appeal period, contain no allegations regarding the Veteran's low back. As noted above, the Veteran filed his original compensation claim in December 1997, and it only included a claim regarding a respiratory disorder. Furthermore, when he initiated the current appeal, he claimed four disabilities that did not include his back. The RO seems to have inferred a claim for the lumbar spine before the Veteran made any statement alleging that it was due to service. In fact, in a December 2012 VA examination for an unrelated psychiatric disorder, the Veteran's lumbar spine pain was noted, along with his use of a cane for that pain. However, while the Veteran reported injuring his cervical spine during service, he stated that he injured his lumbar spine in a motor vehicle accident in 2010, many years after separation. Therefore, even if the Board is to view his more recent vague statements regarding his lumbar spine as an allegation that he injured it in service and has had trouble with it since then, these statements would be far outweighed by the earlier claims and medical records, all of which constitute negative evidence, since the Veteran was seeking VA compensation disability benefits but did not include his lumbar spine and also reported the origin of his lumbar spine pain in 2012 to be a motor vehicle accident in 2010 and not an in-service accident. As such, the evidence that supports a finding that there was no injury to the Veteran's lumbar spine in service far outweighs any evidence in its favor, since the entirety of that evidence is statements by the Veteran that are inconsistent and unreliable. In summary, the Board finds that service connection for a lumbosacral spine disability is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.