Citation Nr: 21074529 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-28 809 DATE: December 15, 2021 ORDER Service connection for thoracolumbar spine disability is denied. FINDING OF FACT The Veteran's current thoracolumbar spine disability, diagnosed as degenerative joint and disc disease, did not manifest in service or to a degree of 10 percent within one year of separation, and is unrelated to service. CONCLUSION OF LAW The criteria for service connection for thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1101,1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January to June 1986 and from November 1990 to May 1991, and had additional service in the Marine Corps Reserves, including in 1985 and 1993. We thank him for his service. He contends that his current thoracolumbar spine disability is related to an injury caused when a Humvee which he was sitting in front of rolled into him in service during active duty for training in June 1987, and appeals from a September 2014 Department of Veterans Affairs (VA) rating decision denying service connection. The Veteran appeared for a hearing in June 2021 before the undersigned acting Veterans Law Judge. A transcript of the proceeding is of record. The Board remanded the appeal for additional development in August 2021. Service connection for thoracolumbar spine disability is denied. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within one year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is considered to be a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current thoracolumbar spine disability, diagnosed as degenerative joint and disc disease. See, e.g., July 2014 radiographic report. The preponderance of the evidence indicates that this disability did not manifest during service or to a degree of 10 percent within one year of separation from a period of service lasting 90 or more days, and is unrelated to service. Service treatment records (STRs) show that the Veteran was seen for medical complaints involving his neck, chest, and right shoulder June 1987. He reported that he had been in the field sitting in front of a Humvee when it rolled, striking him in the back and neck. STRs show that he complained of neck and chest pain, but not of back pain. He had an ecchymosis on the back of his right shoulder but it had a full range of motion. Cervical spine, skull, and chest X-rays were normal, and the diagnosis was soft tissue trauma. The next day, only his head was mentioned, with the Veteran reporting that he felt the bruising and that it was sore. He was neurologically normal in his upper and lower extremities. In May 1988, the Veteran certified that there had been no significant change in his health since his physical in January 1987. Service examinations in January 1989 and April 1990 show that the Veteran's spine was clinically evaluated and found to be normal at those times. And in a January 1989 report of medical history, the Veteran denied having or having had recurrent back pain and reported being in good health and on no medications. The first mention of any back trouble post-service appears to be in May 2001, when the Veteran reported having low back trouble over the years, worse in the past year. Later that month, a lumbar spine series of X rays revealed that his lumbar vertebrae were normal, without evidence of fractures, dislocations, spondylolisthesis, or significant degenerative changes. There was an incidentally noted degenerative change involving T12. X rays in November 2004 showed mild degenerative changes in the lower thoracic and lumbar spines. At the time (and also later, including at the time of an August 2014 VA examination and in June 2021 hearing testimony), the Veteran reported that he had had continuous back pain since being run over by the Humvee in service, but this is contradicted by his earlier May 1988 certification and the January 1989 and April 1990 report/s of medical history and service examinations. Those are found to be more probative as they were closer to and for service and the Veteran was being examined for service purposes on two of those occasions. Furthermore, in October 2021, a VA examiner opined that the Veteran's current lumbar spine disease is not due to the Humvee accident. The examiner explained that there is no evidence of a lumbar spine condition resulting from the Humvee accident. The examiner noted, as is supported by the STRs, that attention to the Veteran's cervical spine was well documented at the time of the Humvee accident and that it was highly unlikely that a significant lumbar spine injury would have gone unnoted or unreported at the time of the accident. Furthermore, reports of medical history from afterward were negative for recurrent back pain, with one of them noting that the Veteran reported that he was in good shape. The examiner indicated that clearly there were no spinal residuals from the Humvee accident, either cervical or thoracolumbar. The examiner indicated that degenerative disease of the spine is considered to be part of the natural aging process due to normal wear and tear over a lifetime, with associated natural disc desiccation. The Veteran's was age-appropriate at the time of the diagnosis. Thirty percent of men 30 years of age and older will have evidence of degenerative spine disease, with the prevalence rising significantly per decade thereafter. At age 50, the number is approximately 50 percent or more. There is no evidence of in service trauma to the spine or in service injury predisposing the Veteran to the naturally occurring degenerative spine disease. Additionally, the Veteran was accepted for active duty after this, in 1990, with no evidence of a back condition through that stint of duty. The examiner stated that any back condition present in 1990 would have required evaluation to be accepted into active duty. The examiner indicated that this almost unequivocally eliminated events prior to 1990/1991 as the cause of the Veteran's current spine conditions. And the examiner indicated that there is no event from 1990 to 1991 predisposing the Veteran to the development of his naturally occurring degenerative thoracolumbar spine disease. Additionally, the Board notes that there is no competent medical evidence of record supporting the claim. While the Veteran may feel that his current thoracolumbar spine disability began in or is due to service, he is not competent to opine on this complex medical matter. Medical training is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, his June 2021 testimony that a pain doctor told him his pain is not related to his post-service job as a truck driver, but is instead due to a previous injury, is not competent. The U.S. Court of Appeals for Veterans Claims has held that "the connection between the layman's account, filtered as it was through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). Robinette v. Brown, 8 Vet. App. 69, 77 (1995), Beausoleil v. Brown, 8 Vet. App. 459 (1996), Epps v. Brown, 9 Vet. App. 341 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). The Veteran's October 2013 report to a private health care provider that his low back pains were secondary to old injuries also is not competent. See Jandreau, 492 F.3d at 1372. (Continued on the next page) Unfortunately, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved in the Veteran's favor concerning it. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The claim for service connection for thoracolumbar spine disability is denied. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.