Citation Nr: 21014394 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-03 256 DATE: March 12, 2021 ORDER The claim of entitlement to service connection for a cervical spine disorder is denied. The claim of entitlement to service connection for a low back disorder is denied. FINDINGS OF FACT 1. The most probative evidence weighs against a finding that the Veteran's cervical spine disorder had onset during active service, manifested within one year of service discharge, or is otherwise related to active service. 2. The most probative evidence weighs against a finding that the Veteran's spine disorder had onset during active service, manifested within one year of service discharge, or is otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for a spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, TX. The appeal was previously remanded in July 2018 and July 2020 for further development. That development was completed, and the appeal has since been returned to the Board for appellate review. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The examination that was conducted on remand addressed the lay statements of record and private medical opinions. Service Connection 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, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). In addition, service connection for certain chronic diseases, including arthritis may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. The claim of entitlement to service connection for a cervical spine disorder is denied. 2. The claim of entitlement to service connection for a low back disorder is denied. The Veteran alleges that his neck and back disorders are related to an in-service accident. See February 2015 Notice of Disagreement. First, the Board finds that there are current disabilities. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In an August 2012 private disability questionnaire (DBQ) the clinician diagnosed of cervicalgia and mild low back pain. A subsequent August 2012 private DBQ documents a diagnosis of cervicalgia and thoracalgia. A January 2013 VA examination confirmed a diagnosis of cervical spine cervicalgia. In an April 2015 DBQ the clinician diagnosed foraminal/lateral recess/central stenosis and spondylolysis/isthmic spondylolisthesis. In an April 2019 VA examination the examiner diagnosed lumbosacral strain and cervical strain. The October 2020 VA examination noted a diagnosis of cervical strain, cervicalgia, torticollis, as well as, spinal fusing spinal stenosis, spondylolisthesis, and thoracalgia. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In the February 2014 Notice of Disagreement, the Veteran reported a neck and back injury in October 1975 when he fell over the tailgate of a truck from a height of about six feet. He landed on his back while wearing a ruck sack, and a 23-pound machine gun landed on top of him. During the October 2015 Board hearing the Veteran provided testimony of the in-service fall. He has also testified that he has suffered from back symptoms since service. The Board finds the Veteran’s statements of an in-service injury to be competent and credible. The Veteran is competent to report as to factual matters of which he or she has first-hand knowledge, to include events he witnessed during service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds the Veteran’s statements credible as they are consistent with the circumstances of his service and the evidence of record. See 38 U.S.C. § 1154 (2012); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Further buttressing the Veteran’s statements is a November 1977 service treatment record (STR) showing the Veteran received treatment for limited movement of the neck. The treatment provider diagnosed torticollis. The STRs are otherwise silent for back complaints. Also, VA received several buddy statements in February 2014 in support of his contention describing the Veteran’s chronic back pain due to an injury sustained while in-service. Accordingly, the second element of service connection has been met. Third, the Board finds that the evidence of record does not support a finding that a neck and back disorder are related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In an August 2012 private DBQ, a physician opined that the Veteran’s cervicalgia and mild/low back pain was related to military service. No supporting explanation for this opinion was provided. Due to this lack of rationale, the Board assigns this opinion no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Veteran received a January 2013 VA examination. The examiner opined that the Veteran’s claimed mid-low back pain thoracalgia was less likely than not incurred in or caused by his service, noting that there was no evidence of mid-to-low back pain, injury, or treatment in the STRs. The examiner explained the Veteran’s January 1979 separation examination showed no disabilities as far as mid to low back conditions, and there was no evidence in the record of treatment until 2007, where the Veteran reported that pain onset was in December 2006. The examiner also opined that the Veteran’s cervical spine cervicalgia was less likely than not due to the Veteran’s reported in-service incident. The examiner acknowledged the one incident of torticollis in service but noted that the condition was a self-limiting spontaneously occurring form of torticollis with one or more painful neck muscles that would pass spontaneously in one to four weeks. The examiner explained the Veteran’s separation physical was silent for any neck condition or pain, and he was not seen again until 2007, where he reported the onset of pain in December 2006. After the January 2013 examination VA received a series of buddy statements in February 2014 that describe the Veteran had symptoms since service. Also, the opinion did not address the Veteran’s statements regarding an in-service injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). In May 2015 the Veteran submitted an April 2015 DBQ. The clinician diagnosed foraminal/lateral recess/central stenosis and spondylolysis/isthmic spondylolisthesis. However, it is unclear whether the diagnoses refer to the back or neck. The examiner opined with a reasonable degree of medical certainty that this disability is at least as likely as not due to active military service. No supporting explanation for this opinion was provided. Due to this lack of rationale, the Board assigns this opinion no probative weight. See Stefl, 21 Vet. App. at 124. In April 2019 the Veteran was provided with another VA examination. The examiner determined the Veteran’s neck and back disorders were less likely than not related to his active duty service. The examiner focused on the lack of a diagnosis during service and no treatment for back or neck pain until 2007. The examiner; however, ignored the lay and buddy statements of record, and did not address the August 2012 and April 2015 positive private opinions. See Nieves-Rodriguez, 22 Vet. App. at 302-04. In October 2020 the Veteran underwent another VA examination. The examiner determined that the Veteran’s cervical spine and back disorders were less likely than not related to his active duty service. The examiner acknowledged the Veteran fell off the back of a truck and experienced mid to low back pain and neck pain. The examiner explained, the Veteran’s military service records including separation exam are negative for a neck or back injury. The examiner concluded a nexus cannot be established based on the records provided. A VA examiner provided an addendum opinion in December 2020. The examiner noted that all available medical records and remand documents, including the Veteran’s statements, lay statements, private medical records and previous medical opinions were reviewed and considered. The examiner again determined that a nexus could not be established. Regarding a neck disorder, the examiner found that, in reviewing the Veteran’s records, there were two documented incidents of regarding neck pain. The examiner explained the separation examination is negative for any neck complaint or abnormal physical exam findings regarding the neck. The examiner noted post service medical records document reports of neck pain with treatment in 2007, almost 30 years after separation from service. Also, the examiner stated without documented continuity of care during that 30 years, intercurrent or new injury/disease cannot be excluded. The examiner acknowledged the Veteran’s reports of symptoms are deemed credible; however, the examiner determined the Veteran is not qualified to ascribe those symptoms to a diagnosis or etiology. The examiner explained the fall reported by the Veteran is stated to have occurred in 1976, yet there is no documented treatment of those injuries found during the remainder of active duty service or immediate post service period. The complaints of neck pain in the STRs in 1977 are noted to be new onset neck pain and therefore are not related to the reported accident a year earlier. Regarding the claimed back disorder, the examiner found that, in reviewing the Veterans’ records, the Veteran’s STRs were negative for any complaints or treatment of back pain during active service, or complaints regarding the back until more than 30 years after leaving service. The examiner considered the lay statements of record and determined that no link was found between the described incident and the claimed back disorder. The examiner explained, the Veteran is not qualified to ascribe those symptoms to a diagnosis or etiology. Further, the fall reported by the Veteran is stated to have occurred in 1976, yet there is no documented treatment of those injuries found during the remainder of active duty service, at separation, or immediate post service period. Therefore, a nexus is not established. The Board finds that the December 2020 addendum to be probative, as it was provided upon review of the relevant facts and are supported by explanation. See Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. Furthermore, as directed by the Board remand, the examiner presumed as true the lay evidence of continuity. Accordingly, the third element of service connection is not met. Although the Veteran has asserted his cervical spine and low back disorder are related to his in-service fall, he has not shown that he has the medical experience or training to provide opinion that requires a medically complex determination that cannot be based on lay observation alone - the development of an internal spine condition as among several potential etiologies. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.