Citation Nr: 21072486 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 13-19 605 DATE: December 3, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with degenerative disc disease of the lumbar spine (lumbar spine disorder); the cause of the Veteran's current lumbar spine disorder clearly and unmistakably preexisted service and was not aggravated by active service; symptoms of the current lumbar spine disorder were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation; the current lumbar spine disorder is not otherwise etiologically related to service. 2. The Veteran is currently diagnosed with degenerative joint disease of the cervical spine (cervical spine disorder); symptoms of the cervical spine disorder were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation; the current cervical spine disorder is not otherwise etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 2. The criteria for service connection for a cervical spine disorder 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 in the Air Force from September 1968 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). In his Form 9 appeal, the Veteran requested a hearing before a Veterans Law Judge, which was scheduled for February 2017. The Veteran failed to appear for the hearing, did not provide a reason for his absence, and has not requested an additional hearing. Therefore, the Board deems his hearing request withdrawn. See 38 C.F.R. § 20.704(d). After initially remanding these claims for additional development, the Board denied entitlement to service connection for both disorders in an August 2018 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a December 2019 order the Court granted a Joint Motion for Remand (JMR) vacating the denial. The Board then remanded this issue for further development consistent with the terms of the JMR in June 2020 and August 2021, and it has now been returned for appellate review. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran is currently diagnosed with degenerative joint disease of the cervical spine (as arthritis) and degenerative disc disease of the lumbar spine (as arthritis) which are "chronic diseases" under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § § 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for a lumbar spine disorder The Veteran generally contends that a lumbar spine disorder is the result of active service. The Veteran's August 1968 enlistment examination noted that he experienced a right leg fracture in 1962. During service, he reported increased right leg and knee pain after marching or prolonged standing, and the treating clinician noted his history of a fractured right femur. December 1968 service treatment records note his right leg measured one inch shorter than his left. The Veteran was instructed to obtain a lift for his right shoe and return for a followup. In March 1969, the orthopedic clinic at Lackland Air Force Base cleared him as qualified for duty. The Veteran was discharged in April 1969 for psychiatric reasons. Service treatment records do not reflect any complaints, symptoms, treatment, or diagnosis for any back pain or back-related problems. The March 1969 service separation examination report reflects the Veteran's back and other musculoskeletal systems were found to be clinically normal. Additionally, the Veteran denied symptoms or a history of recurrent back pain on the corresponding March 1969 Report of Medical History. During a May 1970 VA examination, the Veteran reported that an Air Force clinician had informed him that his right leg was shorter than his left, and that he was given a built-up shoe but did not undergo any physiotherapy. The examiner noted he experienced a football injury in May 1962 and was placed in a full leg cast for six and a half weeks. The examiner observed that the Veteran manifested mild compensatory lumbar scoliosis as well as traumatic arthritis in his right knee, but that he did not exhibit an altered gait. The Veteran did not describe any back or neck pain during or since service. As noted above, the Board remanded this issue to the AOJ for further development in June 2020 and August 2021. Specifically, the Board requested a medical opinion addressing the Veteran's contention that his shorter right leg and subsequently diagnosed compensatory scoliosis were the cause of his current lumbar spine DDD. The examiner was also asked to discuss whether the Veteran's compensatory scoliosis preexisted his service and, if so, whether it was aggravated by his active service. The AOJ obtained an addendum opinion in August 2021. In the August 2021 addendum opinion, the examiner first stated that the Veteran's leg length discrepancy clearly and unmistakably preexisted his active service. The examiner noted that when he was 14 years old the Veteran injured his right knee area and was in a cast for six and a half weeks, stating that in boys the femur grows an average of nine millimeters per year until age 16. The examiner attributed his shorter right leg to the full cast, stating that if he did not walk with a limp, the length discrepancy as well as mild scoliosis would not have been easily recognized. The scoliosis was also characterized as preexisting service, and the examiner stated that it would be medically inconceivable for compensatory scoliosis to develop during seven months of service without a back injury, which was not observed in the service treatment records. The examiner found it much more likely that the scoliosis developed in the six years between the right leg injury and induction to service. The VA examiner also opined that the Veteran's leg length discrepancy was the cause of his compensatory scoliosis, and that this condition was not aggravated by his service, as evidenced by service and post-service treatment records that were silent for back complaints. The examiner conceded that chronic lumbar scoliosis may eventually lead to degenerative changes but stated that age as well as wear and tear caused by the Veteran's post-service employment could also be causes. The examiner ultimately concluded that the Veteran's lumbar spine degenerative changes were at least as likely as not due to his compensatory lumbar scoliosis. Based on the foregoing, the Board finds that the Veteran's leg length discrepancy and resulting compensatory scoliosis clearly and unmistakably preexisted his entry to service, and that this disorder was not aggravated by his seven months of active service. To that effect, the Board finds the August 2021 addendum opinion to be highly probative, as it is based on a thorough review of the Veteran's medical records and provides supporting rationale using medical expertise based on accurate facts. This opinion also indicates that the natural progression of the Veteran's compensatory scoliosis was at least as likely as not the cause of his current lumbar spine DDD and notes that other likely causes were not related to the Veteran's active service. Further, the Board finds that the weight of the evidence shows no in-service lumbar spine injury, disease, or even symptoms of a lumbar spine disorder during service, including no chronic symptoms of arthritis during service. Service treatment records do not show any injury, complaints, symptoms, diagnosis, or treatment for lumbar spine pain, including no chronic symptoms of arthritis in the lumbar spine during service. A March 1969 service separation examination shows the Veteran's spine, and other musculoskeletal systems were found to be clinically normal. On a corresponding March 1969 Report of Medical History, the Veteran denied symptoms or a history of arthritis or rheumatism, bone, joint, or other deformity, and recurrent back pain. The lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the lumbar spine since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on presumptive avenues of "chronic" in-service symptoms, "continuous" post service symptoms, or arthritis to 10 percent within one year of service. As discussed above, neither the service treatment records nor the March 1969 service separation examination indicated any history or findings or diagnosis for arthritis in the lumbar spine, or any other problems with the lumbar spine. The earliest evidence of arthritis in the lumbar spine is not indicated until 1998 in a September 1988 VA treatment record diagnosing degenerative disc disease in the lumbar spine. This evidence reflects the presence of arthritis over 29 years after service separation and over 28 years outside of the applicable presumptive period. See also October 1997 VA treatment record (reflecting the Veteran's lumbar spine X ray was normal). On the question of direct nexus between the current lumbar spine disorder and service, the Board finds that the preponderance of the lay and medical evidence is against a finding that the currently diagnosed lumbar spine disorder is causally related to service. In addition to the findings of no in-service injury, disease, or even lumbar spine symptoms suggestive of onset of injury or disease during service, the weight of the evidence also shows that the symptoms of the lumbar spine disorder had its onset after active service. The Veteran was not treated for arthritis in the lumbar spine until after service and was not diagnosed with arthritis in the lumbar spine until September 1998. Additionally, the August 2021 VA examiner noted that the Veteran's service treatment records and an examination thirteen months after separation were silent for back issues, the examiner opined that the Veteran's current lumbar spine DDD was less likely than not due to his active service. With regard to chronicity, the VA examiner stated that the Veteran's leg length discrepancy preexisted his service and was due to an injury six years prior to his entrance to service. The examiner concluded there was no evidence that his current arthritis began in service or within one year of separation. Although the Veteran has provided statements describing an in-service back injury as well as the onset of back pain during service, the Board finds them to have little probative value. The Veteran's reports of right leg pain, diagnosed as due to his leg length discrepancy, are well documented in his service treatment records. However, these records are silent for complaints of or treatment for associated back pain, and his separation examination is silent with regard to back issues. In this case, the Board finds that that Veteran's service treatment records are more reliable evidence and have more probative value than his more recent lay statements submitted in support of this claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Similarly, a VA examination approximately one year after separation is silent with regard to back pain, and the Veteran reported only right leg and headache issues to the examiner. For the foregoing reasons, the Board finds that the weight of the evidence is against the claim for service connection for a lumbar spine disorder on all service connection theories; therefore, the claim must be denied. 2. Entitlement to service connection for a cervical spine disorder The Veteran asserts his current cervical spine disorder, diagnosed as degenerative arthritis, is due to his active service. At the outset, the Board finds the Veteran is currently diagnosed with degenerative joint disease of the cervical spine. See August 2017 VA examination report. After a review of all the evidence or record, lay and medical, the Board finds that the weight of the evidence shows no in-service cervical spine injury, disease, or even symptoms of a cervical spine disorder during service, including no chronic symptoms of arthritis during service. Service treatment records do not show any injury, complaints, symptoms, diagnosis, or treatment for cervical spine pain, including no chronic symptoms of arthritis in the cervical spine during service. A March 1969 service separation examination shows the Veteran's neck, spine, and other musculoskeletal systems were found to be clinically normal. On a corresponding March 1969 Report of Medical History, the Veteran denied symptoms or a history of arthritis or rheumatism, bone, joint, or other deformity. The lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the cervical spine since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on presumptive avenues of "chronic" in-service symptoms, "continuous" post service symptoms, or arthritis to 10 percent within one year of service. As discussed above, neither the service treatment records nor the March 1969 service separation examination indicated any history or findings or diagnosis for arthritis in the cervical spine, or any other problems with the cervical spine. The earliest evidence of arthritis in the cervical spine is not indicated until 2007 in a March 2007 VA treatment record diagnosing cervical spine degenerative joint disease. This evidence reflects the presence of arthritis nearly 38 years after service separation and nearly 37 years outside of the applicable presumptive period. On the question of direct nexus between the current cervical spine disorder and service, the Board finds that the preponderance of the lay and medical evidence is against a finding that the currently diagnosed cervical spine disorder is causally related to service. In addition to the findings of no in-service injury, disease, or even cervical spine symptoms suggestive of onset of injury or disease during service, the weight of the evidence also shows that the symptoms of the cervical spine disorders had its onset after active service. The Veteran was not treated for arthritis in the cervical spine until after service and was not diagnosed with arthritis in cervical spine until March 2007. The Board notes that his service treatment and post-service medical records, to include a VA examination conducted one year after his separation, are silent for complaints of or treatment for cervical spine symptoms until approximately 2006. According to September 2007 VA treatment records, the Veteran claimed he injured his neck in a work-related accident. October 2009 VA records note he underwent fusion of the cervical spine. The Veteran was afforded a VA cervical spine examination in August 2017, during which he stated his cervical spine issues began after a work injury. The examiner noted that a review of the Veteran's medical records indicated he started to experience neck pain after feeling a "pop" in his neck while cutting a bolt at work in December 2006. The examiner opined that the Veteran's cervical spine disorder was less likely than not due to his active service, instead attributing it to his intervening 2006 work injury, and noting that he had reported continuing neck pain even after undergoing cervical spine surgery. The Veteran reiterated his statement describing the onset of neck pain after a work accident during a June 2021 VA examination. As discussed above, the Board has found that the Veteran's leg length discrepancy and resulting compensatory lumbar scoliosis clearly and unmistakably preexisted service and were not aggravated by active service. In the August 2021 VA addendum opinion, the VA examiner observed that the Veteran's service treatment records were silent for complaint of or treatment for cervical spine symptoms, and there was no indication of the onset of cervical spine arthritis during or within one year of separation from service. The examiner also opined that the Veteran's cervical spine disorder was less likely than not due to his active service or his compensatory lumbar scoliosis, noting that the cervical spine is a different segment of the spine and the mechanical forces and transmission of these forces to the cervical spine are different from the lumbar spine. The Board finds the 2017 and 2021 VA opinions to be highly probative, both cumulatively and independently, as they are based on a thorough review of the Veteran's medical records, and provide supporting rationale using medical expertise based on accurate facts. The Veteran's service treatment records are silent for complaints of or treatment for neck pain, as is his initial VA physical examination one year after separation. The Board notes that the Veteran's own lay statements consistently describe the initial onset of neck pain following a work-related incident that occurred over 35 years after his separation from service. (Continued on the next page) Given the absence of lay or medical evidence indicating a neck injury or the presence of symptoms during or since service, as well as the probative medical opinions, the Board finds that a preponderance of the evidence is against the claim for service connection for a cervical spine disorder on all service connection theories, and the claim must be denied. E. Choi Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.