Citation Nr: 21008312 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 16-27 566A DATE: February 16, 2021 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is denied. Entitlement to service connection for spondylosis of the cervical spine is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability is not related to his active miliary service, including his service in Southwest Asia, and did not manifest within one year from discharge. 2. Veteran’s cervical spine disability is not related to his active miliary service, including his service in Southwest Asia, and did not manifest within one year from discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for spondylosis of the cervical spine have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the Army Reserves who had a period of initial active duty training from March 1987 to August 1987. He then served on active duty with the United States Army from December 1990 to July 1991, including service in the Southwest Asia theater of military operations (SWA) during the Persian Gulf War. He timely appealed these matters from an April 2016 rating decision. In a May 2019 decision, the Board of Veterans’ Appeals (Board) reopened the Veteran’s claims for service connection for spondylosis of the cervical spine and for degenerative disc disease of lumbar spine and then denied each of the claims on their merits. The Veteran appealed the May 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Joint Motion for Partial Remand, the parties moved to vacate the Board decision to the extent that it denied service connection for spondylosis of cervical spine and degenerative disc disease of lumbar spine. The Court granted the motion. Thereafter, the appeal was returned to the Board. In September 2020, the Board remanded the claims for further development pursuant to the March 2020 Joint Motion for Partial Remand. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 also may be warranted for a Persian Gulf War Veteran who exhibits objective indications of qualifying chronic disability that became manifest during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later within one year from the date of separation. 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). A medically unexplained chronic multi-symptom illness (MUCMI) is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. Section 3.317(a)(2)(ii) defines MUCMI as “a diagnosed illness without conclusive pathophysiology or etiology” and further states that “[c]hronic multi-symptom illness of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.” Goodman v. Shulkin, 870 F.3d 1383, 1384 n. 1 (Fed. Cir. 2017). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to, fatigue; signs or symptoms involving skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317 (b). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. As the Veteran’s claimed cervical and lumbar spine symptoms have a known clinical diagnosis (i.e. DDD and degenerative arthritis), the Persian Gulf War presumption of service connection does not apply. Although the Veteran has not established entitlement to service connection on any of the presumptive bases noted above, he is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). 1. Entitlement to service connection for a lumbar and cervical spine disability The Veteran contends that his lumbar and cervical spine disabilities are due to environmental exposure from his Gulf War service, or in the alternative, an in-service fall. Service treatment records (STRs) do not reflect diagnoses, treatment, or symptoms of a lumbar and cervical spine disability. The February 1987 enlistment report of medical examination noted a normal clinical evaluation for the spine. In his April 1991 report of medical history, nearing separation, the Veteran selected that he did not have swollen or painful joints, arthritis, and recurrent back pain. Treatment records from May 1991 reflect that the Veteran injured his left shoulder in KSA when he fell and tried to brace the fall with his extended arm. He was seen in KSA for the injury (no records available) and during his demobilization physical, he was given a consult to orthopedics for evaluation and treatment for the injury. An April 1992 physical examination coding sheet noted that there was no separation physical examination. Post-service, an April 1993 general VA examination report reflects that the Veteran complained of soreness in both his cervical spine and lower back for about a year. He said the pain seemed to be worsening. He reported that there was no specific injury for any of these joints. The report indicated normal range of motion, no tenderness or swelling, and no abnormal sensory loss. The report also noted diagnoses including rule out joint pathology, including neck, lower back. Private treatment records from Dr. D.C. beginning in 2006 reflect continued treatment for complaint of lumbar and cervical spine pain. In a March 2010 statement in support of claim, the Veteran stated that his claims for aching joints all over his body is caused from the Gulf War. He stated that he has been self-medicating since service. The Veteran underwent a VA examination for sore joints (aching joints all over the body) in November 2010. The report noted that regarding the spine, the Veteran had a diagnosis of “claims joint pain in cervical spine.” The report noted that STRs and the enlistment examination are silent for any cervical spine condition. It reported that the Veteran stated that there was no injury. He stated that it hurts a little bit more at night and reported symptoms of constant pain at level 5-7 and constant stiffness. Regarding spondylosis of the cervical spine, the examiner noted no radiculopathy or functional limitation. He noted that the Veteran has claimed a disability pattern related to neck pain and stiffness that meets TL10-01 criteria for a disease with a clear and specific etiology and diagnosis. The examiner opined that it is less likely than not caused by or related to Gulf War environmental exposure, and more likely than not caused by or related to age, after service. Regarding his spine, the November 2010 VA examination report indicates that the Veteran’s diagnosis is “claims low back pain” but that enlistment physical and STRs are silent for a back condition. It noted that the Veteran stated that onset is after service and that it is stable most of the time but hurts more if he does a lot. He reported constant pain at level 5-7, but no stiffness, weakness, or fatigability, and that he can walk one mile but cannot stand for more than 10-15 minutes on hard surfaces due to his back pain. He reported that he has chiropractic treatment once a month. Regarding the lumbar spine, the examiner noted no radiculopathy and minimal functional limitation. The examiner noted that the Veteran has claimed a disability pattern related to low back pain radiating into the lower extremities that meets TL10-01 criteria for a disease with a clear and specific etiology and diagnosis. The examiner opined that it is less likely than not caused by or related to Gulf War environmental exposure, and more likely than not caused by or related to age, after service. Private treatment records received in November 2015 indicate complaints and treatment for generalized low back pain and bilateral cervical pain, including assessments of cervical subluxation, cervical and lumbar fixations associated soft tissue involvement. In a November 2015 letter, the Veteran’s chiropractor stated that the Veteran has been a patient in the clinic over the last 15 years and has been treated multiple times. The current diagnosis of his last visit is multiple spinal subluxations of cervical thoracic and lumbar spine. He noted cervical brachial syndrome affecting the upper cervical and arm area, and that the Veteran has also been treated for a lumbar disc displacement as well as multiple sites of joint stiffness. VA treatment records from June 2016 indicate that physical examination of the musculoskeletal system revealed that gait was coordinated and smooth. The records indicate no misalignment, defects, or deformities of joints, bones, or muscles, and that joints were within full range of motion with no pain or contractures, and no muscle atrophy or weakness. Medical treatment records from Dr. J.S. reveal some back and joint pain. A November 2020 VA examination report reflects that the Veteran had a diagnosis of degenerative arthritis of the lumbar spine and DDD of the cervical spine. He reported that he has had a lumbar spine disability since service and thought it could be related to injuring his neck. The Veteran reported an onset of cervical spine pain in 1991. He reported that he believes that he injured his neck when he injured his shoulder in 1991. The clinician opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The clinician reported that musculoskeletal pain of the lumbar spine and cervical spine, diagnosed as degenerative arthritis of the lumbar spine and degenerative arthritis of the cervical spine, and cervical spine degenerative disc disease are physical issues related to activities or trauma or general wear and tear—they are not due to some exposure in the Persian Gulf. She noted that in the April 1993 examination note, the Veteran stated he had back and other joint pain with no specific injury. The examination was normal, and no diagnosis was made related to the pain. She found that there was no evidence that this is related to his current diagnosis or to service, including environmental exposures in the Persian Gulf, or the June 1991 slip-and-fall injury to the Veteran’s left shoulder. She noted that the Veteran thinks his back pain is related to injuring his neck. He stated that he still has some lower back pain. He reported that he has seen a chiropractor in the past for his back but sometimes for his lower back as well. He reported that he has pain when he bends over a lot. He also reported pain on the right side of his neck. He stated that over the years, he saw a chiropractor. He also saw a specialist who did an MRI and suggested he could do surgery on his neck, but he did not want surgery, so he never went back. The clinician noted that he has minimal degenerative changes only of the lumbar spine based upon the current radiology of the neck from 2018. She concluded that it is more likely than not that his degenerative changes are related to age. She reported that his conditions could easily be expected for a 50-year-old individual. Additionally, the clinician reported that there is no medical evidence that degenerative changes in the lumbar and cervical spine are related to a shoulder injury. He has minimal degenerative changes only of the lumbar spine based on radiology from 2019 and there is no evidence that this has been aggravated beyond a normal progression. She opined that is more likely than not that his degenerative changes are related to age. She again reported that the Veteran’s conditions could easily be expected for a 50-year-old individual. She noted the April 1993 examination note where the Veteran reported that his joint pain had no specific injury. She found that there is no evidence that his current diagnosis is related to the June 1991 slip-and-fall injury to the Veteran’s left shoulder. Upon review of the evidence of record, the Board finds that service connection for a lumbar and cervical disability is not warranted. As noted above, the Veteran’s lumbar and cervical spine disability has been attributed to known clinical diagnoses—degenerative arthritis and DDD, respectively. As such, awarding service connection pursuant to 38 U.S.C. § 1117 is not warranted. As the Veteran has a current diagnosis, the question remains as to whether there exists a nexus between his lumbar and spine disability and his active military service. Based on a review of the available records and her particular expertise, the examiner found that the Veteran’s lumbar and cervical spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner addressed the 1993 VA general examination complaints of joint pain and the Veteran’s statements and provided an adequate rationale for her conclusion that the Veteran’s disability was not due to service, to include exposure to environmental hazards. Moreover, she addressed the in-service fall. She attributed the Veteran’s lumbar and cervical spine disability to age. As the physician explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the Veteran, including through his representative, has opined that his lumbar and cervical disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his lumbar and cervical spine disability relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran’s statements are therefore not competent in this regard. Notably, the in-service fall which injured the Veteran’s left shoulder did not injury his neck or lumbar spine. At the time of the fall, the Veteran specifically reported that he used his left shoulder to break the fall and did not complain of neck or back pain. In service, he continued to receive treatment for his left shoulder and there were no notations of lumbar or cervical pain. During the 1993 general VA examination, he did not menton the in-service fall and how it was related to his complaint of lumbar and cervical strain. Medical treatment records reflect that neither Dr. J.S, Dr. D.C., or any other treating VA clinician attributed any complaint of lumbar and cervical pain to service or the in-service fall. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinion of the VA examiner to be of greater probative weight than the Veteran’s more general lay assertions. Finally, the Board notes that the April 2020 Joint Motion for Partial Remand addressed the Board’s failure to ensure that the duty to assist was satisfied. Specifically, it was noted that the Veteran was never specifically told to obtain and send the treatment records from Dr. J.S. and Dr. D.C. to the VA. Pursuant to VA’s duty to assist in developing claims, VA is obligated to notify a claimant of VA’s inability to obtain records, and request that the claimant obtain the records and provide them to VA. 38 C.F.R. § 3.159 (e)(2). In March 2016, VA requested that the Veteran provide a complete address and release for records from two providers namely, Dr. D.C., a chiropractor who treated the Veteran approximately from 2000; and Dr. J.S., a primary care physician who treated the Veteran approximately from 1998. The Veteran did not respond, and so VA took no further actions. The September 2020 Board remand directed the VA to make another attempt to obtain a completed release from the Veteran for each provider in order to obtain the records. Subsequently, the VA sent the Veteran a development letter directing him to complete and return the VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs. Consequently, medical treatment records were received from Dr. J.S. and Dr. D.C. Thus, the VA’s duty to assist has been fully satisfied. (Continued on Next Page) For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for a lumbar and cervical spine disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. TIFFANY N. HANSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.