Citation Nr: 21006636 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-12 284 DATE: February 4, 2021 ORDER Entitlement to service connection for a neck condition is denied. Entitlement to service connection for a low back condition is denied. FINDINGS OF FACT 1. A cervical condition clearly and unmistakably pre-existed the Veteran's service and clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of the Veteran's service. 2. The preponderance of the evidence is against finding that a cervical condition began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that a back condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. [The criteria for service connection for a cervical condition have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 2. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1989 to July 1989, from December 1990 to June 1991, and from July 1991 to November 1991. In July 2018, the Board remanded the issues below on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. 1110; 38 C.F.R. 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Entitlement to service connection for a neck condition The Veteran contends that his neck disability is a congenital condition which was aggravated by his active duty service. The Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of any neck disability. Post-service treatment records reflect the Veteran’s complaints of neck pain and stiffness. A September 2007 MRI revealed cervical stenosis, and in October 2008 the Veteran underwent an anterior cervical discectomy and fusion. In January 2015, the Veteran attended a VA Neck Conditions examination. The examiner diagnosed cervical stenosis however, he did not provide an etiological opinion nor did he address the Veteran’s contentions that his cervical stenosis was a congenital condition. In March 2019, as required by a July 2018 Board remand, the Veteran attended a VA Neck Conditions examination. The examiner diagnosed intervertebral disc syndrome (IVDS), spinal fusion, and spinal stenosis. He opined that the Veteran’s claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale provided was: The Vet/SM was examined today and the supplied e-file reviewed for this IMO. For the VA question of :" If the Veteran's claimed Neck Disability is deemed to be a congenital disease, is it at least as likely as not 50 percent or better probability that it was aggravated/worsened beyond its natural progression during service?" my opinion is no. I can find no reports of signs or symptoms for back and /or neck pain , injury , illness in service. I can not opinion positively w/o resorting to mere speculation. The majority of evidence suggest j his C spine [and] TL spine symptoms began about mid 2000's and not in service. He further opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: The Vet/SM was examined today and the supplied e-file reviewed for this IMO. For the VA question of :" the Veteran's claimed Neck Disability is not deemed to be a congenital disease or defect, is it at least as likely as not 50 percent or greater probability, that such disability had its onset during any period of service, or is otherwise related to such period of service?" Deemed to be congenital. In February 2020, the Veteran provided another Neck Conditions Disability Benefits Questionnaire (DBQ). The examiner diagnosed IVDS, spinal stenosis, spinal fusion, and degenerative arthritis of the spine. Further, she opined that the Veteran’s claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale provided was: The veteran's medical files are silent of a neck condition during service and unable to determine if the condition was aggravated during service from subjective evidence only without speculation. She further opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: Cervical stenosis is a congenital condition. There is no disease process involved. Congenital stenosis is a narrow spinal canal that is present from birth. Although congenital stenosis does not cause problems by itself, it makes the spinal cord and/or nerve roots more susceptible to acquired stenosis. Congenital defect is a condition present at birth regardless of its cause. Birth defects may result in disabilities that may be physical, intellectual, or developmental. Review of all STR's and are silent for symptoms and/or diagnosis consistent with the claimed cervical stenosis. There is no subjective/objective evidence in his STR's to indicate that he had cervical stenosis during service. Onset of symptoms were in 2007. The veteran's medical files are silent of a neck injury during service. Therefore, no nexus established. The remaining evidence of record details complaints and subsequent treatment for a cervical condition but no discussion on its etiology. Based on the foregoing, service connection is not warranted. To that end, the only medical evidence of record is against the claim. Indeed, the March 2019 VA examiner and February 2020 private examiner both collectively found that the Veteran’s cervical conditional clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression in addition to being less likely than not incurred in or caused by active service. These opinions were based on a review of the Veteran’s entire claims folder, considered the Veteran’s lay statements, and provided clear conclusions with supporting rationale. Therefore, the Board find them highly probative. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a cervical condition. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for a low back condition The Veteran contends that his low back disability was caused or aggravated by his active duty service. The Veteran’s service treatment records are silent for any complaints, treatment or diagnosis for a low back disability, however the Veteran testified that while running a drill, he tripped and fell. In addition, a statement submitted by a friend of the Veteran indicated that the Veteran complained to him of back pain during his service but refused to go to sick call. Post-service the Veteran’s treatment records reflect that a December 2013 MRI revealed findings of L4-5 and L5-S1 disc narrowing, and the Veteran was diagnosed with lumbar disc disease. In January 2015 the Veteran attended a VA Back Conditions examination. The examiner diagnosed degenerative disc disease/degenerative joint disease (DDD/DJD), however, he did not provide an etiological opinion. The Veteran provided an opinion from his private chiropractor, Dr. B.J.T, in September 2017. Dr B.J.T. noted that he had treated the Veteran for low back pain and opined that “it is more likely than not that his condition is connected to his military service.” He did not mention any diagnosis, specifically the Veteran’s previously diagnosed DDD/DJD, and he did not explain what injury he was referring to. Furthermore, while he provided the rationale that “[i]t is reasonable that prior to that injury, he had no back problems given that he cleared the entrance examination into the Air Force,” the Board found this opinion incomplete and inadequate. In March 2019, as required by a July 2018 Board remand, the Veteran attended a VA Back Conditions examination. The examiner diagnosed degenerative arthritis of the spine. He opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: The Vet/SM was examined today and the supplied e-file reviewed for this IMO. For the VA question of :" For any diagnosed Low Back Disability, is it at least as likely as not 50 percent or greater probability, that such disability had its onset during any period of service? The examiner should specifically address the Veteran's reports of falling in service and his friend's statement reporting pain during service." My opinion is that there is no objective evidence for chronic LBP condition in service. In February 2020, the Veteran provided another Back Conditions DBQ. The examiner diagnosed degenerative arthritis of the spine. Further, she opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: After review of the veteran's STR's, there is no objective evidence of a lower back condition due to reports of falling in service. Subjective evidence only. Lower back condition noted in 2006, after service. Diagnosis of lumbosacral DJD/DDD in 2006. A statement submitted by a friend of the veteran indicating that the veteran complained to him of back pain during his service, but refused to go to sick call. Post-service the veteran's treatment records reflect that a December 2013 MRI revealed findings of L4-5 and L5-S1 disc narrowing, and the veteran was diagnosed with lumbar disc disease. A nexus has not been established. The remaining evidence of record details complaints and subsequent treatment for a back condition but no discussion on its etiology. Based on the foregoing, service connection is not warranted. Indeed, the March 2019 VA examiner and February 2020 private examiner both collectively found that the Veteran’s back condition less likely than not incurred in or caused by active service. These opinions were based on a review of the Veteran’s entire claims folder, considered the Veteran’s lay statements, and provided clear conclusions with supporting rationale. Therefore, the Board finds them highly probative. Also, while the Board recognizes the positive opinion of record, as previously noted, it has been deemed inadequate due to lack of an adequate rationale in support thereof. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a back condition. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II, 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.