Citation Nr: 21013274 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 20-11 292 DATE: March 9, 2021 ORDER Entitlement to service connection low back strain (lumbar spine) disability is denied. Entitlement to service connection for cervical spine spondylosis disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a lumbar spine disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a cervical spine disability 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 lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1966. This matter was remanded by the Board of Veterans Appeals (Board) in a May 2020 decision. It now returns for further appellate review. Service Connection 1-2. Lumbar and Cervical Spine Disability The Veteran contends that his cervical and lumbar spine disabilities were caused by his in-service right lower fracture which occurred during a parachute jump. See September 2007 Notice of Disagreement (NOD). Specifically, the Veteran states that “I fractured my right lower leg at Ft. Campbell KY in 1965 during a parachute drop…. The fracture has created an awkward gait causing considerable strain on my lower back and neck.” Id. Legal criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Relevant Facts and Analysis A private X-ray of the Veteran’s lumbar spine taken in April 2011 confirmed a diagnosis of multilevel moderate lumbar spondylosis. See April 2011 Private X-ray Report, White-Wilson Medical Center, P.A. Similarly, an X-ray of the Veteran’s cervical spine confirmed the Veteran had lower cervical spondylosis and facet disease. Id. The Veteran’s private physician confirmed that the Veteran has degenerative arthritis of the cervical and lumbar spines. See April 2011 Letter from Dr. T.M.H. As such, the first element of service connection, a current disability, has been met for both the cervical and lumbar spine disabilities. Regarding the second element of service connection, the Board notes that that the Veteran’s November 1963 entrance and December 1965 separation examination were negative for any complaints or diagnosis of a cervical or lumbar spine disability. See November 1963 and December 1965 Reports of Medical Examination in Service Treatment Records (STRs) – Medical. Additionally, the Veteran had normal clinical findings for the spine and musculoskeletal examinations in November 1963 and December 1965. Id. However, the Veteran’s STRs confirm that that Veteran was placed on temporary assigment limitations due to a sprained left ankle, talofibular ligament (in cast) in July 1965. See July 1965 Physical Profile Record, in STR-Medical. Although, there is some conflict between the Veteran’s assertion that he fractured his right ankle during service, and the STRs documenting a left ankle fracture, the Board notes the STRs confirm and in-service injury occurred. As such, the second element of service connection has been satisfied. The question for the Board is whether there is a nexus between the Veteran’s current disabilities and his in-service injury. On this issue, the record contains three nexus opinions as addressed in further detail below. However, none of these opinions provide the evidence to substantiate this requisite element of service connection. In the May 2020 Board decision remanding the claim, the Board noted that the January 2013 VA medical opinion was inadequate to the extent that it failed to address the Veteran’s assertions and because it relied on the absence of treatment in the Veteran’s STRs. As such, the Board will not discuss the January 2013 medical opinion. As to the other opinions of record, the Veteran’s private physician, Dr. T.M.H. provided a statement in support of the Veteran’s claims. See April 2011 Letter from Dr. T.M.H. Dr. T.M.H. stated that “[i]t is certainly well known that joint trauma can set the stage for subsequent arthritis[,]” in response to the Veteran’s contention that his cervical and lumbar spine problems were the result of basic airborne training jumps during service. Id. Unfortunately, this opinion is of limited probative value for the following reasons. First, as noted in the May 2020 Board decision, Dr. T.M.H.’s opinion was framed in terms of possibility instead of probability. Essentially, this opinion is speculative and not entitled to no probative value. See Bloom v. West, 12 Vet. App. 185, 186-187 (1999) (treating physician’s opinion that service “could have” precipitated a disability found too speculative). Moreover, Dr. T.M.H. did not provide any rationale for his conclusion. A medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This was not provided here. As such, the Board finds that this decision is of no probative value. On the other hand, pursuant to the Board’s May 2020 remand, the VA obtained medical nexus opinions for the Veteran’s cervical and lumbar spine disabilities in November 2020. As to the Veteran’s lumbar spine disability, the examiner opined that it was less likely than not related to active service. See November 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). The examiner considered the Veteran’s parachute jumps but noted that there was no documentation of chronic back problems in Veteran’s service records. Id. He further stated “[i]t is not presumptive to assume that if the jumps or landings caused back problems, some back complaints would be noted in the record.” The examiner also cited an article entitled “The spine in Sport and veteran military parachutists,” which found no connection between parachuting and lumbar spine disabilities based on a study. Notably, the examiner stated “[i]t is highly likely that the back problems were incurred after []service…. Dr. [T.M.H.]’s opinion is purely speculative as it does not consider the decades of time, wear and tear and activities, genetic predisposition act in the development of his DDD.” Id. The examiner noted review of the claims file and stated he found no evidence of chronic or recurrent back problems which began in service, or manifested within one year of service, that was noted during service with continuity of same symptoms since service, in concluding that a nexus could not be established. The November 2020 VA examiner also provided a negative nexus opinion for the Veteran’s cervical spine disability. See November 2020 VA Medical Opinion DBQ. The examiner acknowledged the Veteran’s parachute jumps but found no documented chronic neck problems or clinical findings for a neck problem in the Veteran’s STRs. He further stated that neck problems associated with jumps or landings are the type of injuries that would be noted in the service records. Id. The examiner cited the article entitled “The spine in Sport and veteran military parachutists” which found no direct correlation between long term disability from parachute jumps. He also addressed Dr. T.M.H.’s opinion as speculative noting that Dr. T.M.H. did not consider other contributing factors and “focuses on basic airborne training jumps as the cause of DDD detected almost 50 years after separation.” Id. The examiner noted review of the claims file and the Veteran’s lay statements but found that “there is just no objective evidence to link the neck to the service or to the parachuting.” Id. The Board finds great probative value in the November 2020 VA examiner’s opinions because the opinions were supported by adequate rationale and are consistent with the medical evidence of record which show that the Veteran did not complain of recurrent neck or back pain until more than four decades after service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may favor competent medical nexus evidence over lay statements offered by Veteran). Moreover, the VA examiner’s opinions considered the Veteran’s medical history, review of the service medical records, and cited to medical literature in support of his conclusions. Additionally, the VA examiner addressed the private medical opinion from Dr. T.M.H. and provided an explanation that the opinion was speculative. The Board also considered the Veteran’s lay statements in support of the claim. The Veteran has stated that he believed that his cervical and lumbar spine disabilities were related to his in-service injury from parachuting. However, in weighing the evidence of record against his claim, there is no evidence of complaints of back and neck pain during his separation examination or in medical treatment records after he left service.  Notably, lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 425 (2011), as to the specific issue in this case, the etiology of his cervical and lumbar spine, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303 (b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board also considered whether the Veteran’s cervical and lumbar degenerative arthritis disabilities were entitled to presumptive service connection as a chronic disease. 38 C.F.R. § 3.309. However, neither the medical evidence of record shows nor does the Veteran contend that he was treated for arthritis or back or neck problems during service, or that he was diagnosed with arthritis within one year following separation. Rather, the record reflects that 2011 was the earliest date the Veteran was diagnosed with arthritis, which is over 41 years following active service. Consequently, service connection cannot be granted based on presumptive service connection of a chronic disease. As noted above, there was no documented in-service manifestation of arthritis, or evidence that he was diagnosed with arthritis within one year of separation from active service. Thus, presumptive service connection for continuity of symptomology is also not warranted, as there was no noting of these conditions. The Board is sympathetic to the Veteran’s assertions and regrets it cannot issue a favorable decision. In sum, there is no competent and credible evidence indicating that the Veteran’s current cervical and lumbar spine disabilities stem from an in-service injury from parachuting. As such, the preponderance of the evidence weighs against the claim for service connection for cervical and lumbar spine disabilities. 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. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.