Citation Nr: 21015978 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-43 263 DATE: March 18, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a thoracolumbar spine disability is denied. Entitlement to service connection, to include on a secondary basis, for a left upper extremity nerve disability is denied. Entitlement to service connection, to include on a secondary basis, for a right lower extremity nerve disability is denied. FINDINGS OF FACT 1. The Veteran’s cervical spine disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. 2. The Veteran’s thoracolumbar spine disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. 3. The Veteran’s left upper extremity nerve disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not proximately due to or aggravated by a service-connected disability. 4. The Veteran’s right lower extremity nerve disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. § 1110, 1112; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. § 1110, 1112; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection, to include on a secondary basis, for a left upper extremity nerve disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection, to include on a secondary basis, for a right lower extremity nerve disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in October 2018 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). As to the matters adjudicated below, neither the Veteran nor his representative has raised any issues with VA’s duty to notify or VA’s duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). 1. Entitlement to service connection for a cervical spine disability 2. Entitlement to service connection for a thoracolumbar spine disability On his August 2016 VA Form 9, the Veteran alleged that injuries in his role as a firefighter during service caused his cervical and thoracolumbar spine disabilities. Factual Background A May 1966 report of medical examination notes that the Veteran had normal head, face, neck, and scalp and normal spine evaluations. A contemporaneous report of medical history notes that the Veteran had no history of a head injury nor recurrent back pain. A May 1968 service treatment record notes that the Veteran had tension headaches but a normal neurologic examination. A May 1968 service treatment record notes that the Veteran complained of pain in the back of his head and endorsed occipital headaches that resulted in pounding and then dull pain. A June 1968 report of medical examination notes that the Veteran had an abnormal head evaluation but normal upper and lower extremities and normal spine evaluations. A November 1968 report of medical examination notes that the Veteran had normal head, face, neck, and scalp, normal upper and lower extremities, and normal spine evaluations. A November 1968 report of medical history noted, however, that the Veteran had frequent or severe headaches that were occipital and diagnosed as tension headaches and were frequent and severe at times with the last episode three to four months prior. An August 70 report of medical examination again noted normal head, face, neck, and scalp and normal spine evaluations. An August 1970 report of medical history noted that the Veteran did not have frequent or severe headaches or back trouble of any kind. A May 2005 private treatment record notes that the Veteran underwent magnetic resonance imaging (MRI) which revealed ligament flavum thickening at T10-11, diffuse extremely mild degenerative disc disease, and degenerative disc changes at L4-L5 with no abnormalities seen at other levels of the lumbar spine. A February 2012 private treatment record again notes that the Veteran had MRIs of the cervical spine, thoracic spine, and lumbar spine. The February 2012 cervical spine MRI revealed mild multilevel cervical discogenic disease, minimal anterolisthesis at C7 to T1, and moderate bilateral facet arthropathy at C7 to T1 with mild bilateral foraminal encroachment. The thoracic spine MRI revealed that the Veteran did not have thoracic disc protrusion, cord deformity, nor canal stenosis but that the veteran did have multilevel thoracic facet arthropathy. The lumbar spine MRI revealed that the Veteran had mild multilevel lumbar discogenic disease and gross distention of the urinary bladder of uncertain clinical significance. A March 2012 private treatment record noted that the Veteran reported low back pain that he claimed started “way back in the 70s” while serving as a fireman. The record further notes that the Veteran stated he did a lot of heavy lifting and that he had fallen down several times during service. The Veteran denied any recent injury. The record noted that the Veteran’s past medical history was non-contributory. It also noted that the Veteran was working as an x-ray technician. Another March 2012 private treatment record notes the Veteran’s lay reports of generalized osteoarthritis affecting the cervical and lumbar spine that was diagnosed more than thirty years ago. The record also notes that the Veteran denied dizziness, headaches, paresthesias, and weakness. The Veteran again reported a history of joint trauma from falling on his back during service. The record further notes that the Veteran’s primary care provider saw the patient for back pain in the 1980s. Lastly, the record notes that the Veteran was trying to establish a disability with VA. A September 2012 VA treatment record notes that the Veteran had chronic, intermittent lumbar pain radiating to his right buttock and right leg. The record notes that the Veteran had an acute exacerbation that began two days prior and was precipitated by the Veteran lifting heavy boards and using a post hole digger. An October 2012 VA treatment record notes a complaint of moderate low back pain radiating to his right leg that began four weeks prior. In a January 2013 buddy statement from F.B., F.B. explained that he served with the Veteran and that many of the firemen sustained back, hip, knee, and other joint injuries. Specific to the Veteran, F.B. stated that he saw the Veteran sustain head and back injuries from impacting the overhead and sides of the cab of the firetrucks. F.B. explained the conditions that the firemen encountered in general but did not provide any other information specific to injuries incurred by the Veteran. A February 2013 private treatment record again notes reports of low back pain, mid back pain, and neck pain with associated radiculopathy. The record also notes that the prior MRI findings suggest a progressive, long-standing pathology and that the Veteran reported that his military service may have caused his neck, mid back, and low back pain. Another February 2013 private treatment record notes that the Veteran had tenderness in the posterior cervical spinous processes and trapezius muscles and in the lower lumbar spinous processes and right buttocks. The record further notes that the Veteran had increased bulk along the thoracic spine. A March 2013 private treatment record notes that diagnostic imaging of the cervical spine was normal except at C7 to T1 where there was minimal anterolisthesis. An April 2013 private treatment record notes that the Veteran had neck, thoracic, and low back pain radiating to the right buttock but without arm or leg weakness or pain and without headaches. The record also notes that the Veteran worked as an MRI technician. A June 2013 private treatment record again notes that the Veteran had chronic, but intermittent problems with an acute exacerbation that began six months prior and was precipitated by job-related repetitive lifting. A July 2013 private treatment record notes that the Veteran had degenerative joint disease and degenerative disc disease of the lumbar spine for years which the Veteran reported began during service and was related to multiple traumas he experienced as a firefighter. The record further notes that the Veteran worked as a radiology technician and continued to have low and mid back pain. In a September 2013 buddy statement from D.G., D.G. stated that he was a retired fire chief and served with the Veteran as his crew chief. D.G. stated that the Veteran received bumps, bruises, and back strains amongst other ailments from his role as a firefighter. D.G. explained that the firemen were subjected to very hazardous conditions including trauma from debris and fire equipment, being exposed to toxic materials, and not having proper equipment. The Veteran was afforded a hearing with a Decision Review Officer (DRO) in April 2016. During the April 2016 DRO hearing, the Veteran testified that severe conditions including rough terrain, slick fire suppressant, heavy fire hoses, and other fire-fighting conditions caused him to suffer multiple falls and injuries. The Veteran testified that he did not seek medical care for his injuries during service because his sergeants would encourage him to continue fighting the fires, and the people he rescued were depending on him to continue to do so. The Veteran stated that his pain had been on and off but gradually and progressively worsened. He claimed that in the late 1980s or early 1990s he began wearing a back brace to help with his sharp back pain. He estimated that he first sought treatment in the mid- 1990s to 2002. The Veteran further explained that he experienced headaches in the back of his head during service that would start in his neck and which he believed were due to trauma to his spine. Lastly, the Veteran testified that post-service, he worked in the medical field in an easy position pushing buttons all day. The Veteran was afforded a VA examination in October 2019. The October 2019 VA examiner’s report notes a diagnose of diffuse cervical arthropathy and thoracolumbar arthropathy. The October 2019 VA examiner determined that “[t]he 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 examiner explained that a review of the Veteran’s records revealed no in-service supporting records and that the Veteran’s August 1970 discharge examination was completely normal with no mention of spine pathology. The examiner further noted that the first post-service neck or back complaints were not until 2012 to recent. The examiner stated that he was familiar with the injuries suffered by firefighters but that a positive nexus opinion could not be provided based on the lengthy delay from service to the first complaints of a neck or back disability. In October 2019, the RO sent a subsequent development letter to the Veteran requesting that he provide the names of his private providers and a release for the records held by them. The Board notes that the Veteran has not responded to this request. Analysis At the outset, the Board finds that the Veteran’s April 2016 DRO hearing testimony that he had an easy job “just pushing buttons all day” lacks credibility and contradicts the June 2013 private treatment record which noted that the Veteran had back pain precipitated and exacerbated by job-related, repetitive lifting as a radiology technician. The Board further notes that a previous September 2012 private treatment record also noted that the Veteran had back pain precipitated and exacerbated by lifting heavy boards and using a post hole digger. Accordingly, to the extent that the Veteran contends that his post-service employment and activities did not cause or impact his spine disabilities, the Board finds that such contentions lack credibility and are inconsistent with the September 2012 and June 2013 private treatment records. The Board also notes that the Veteran’s contention that his in-service headaches were a symptom of his neck disability lacks credibility. The Veteran testified during his April 2016 DRO hearing that his headaches started during service in the back of his head and neck and were due to trauma to his spine during service. The Board notes that the Veteran’s service treatment records are completely silent for any complaints, treatment, or diagnoses of a neck disability. Moreover, the Veteran has consistently denied post-service headaches as documented in the March 2012 and April 2013 private treatment records. The Board finds the Veteran’s recent complaints raised nearly fifty years after separation that his in-service headaches were caused by neck pain lack credibility especially in light of the fact that the record does not indicate that the Veteran continues to suffer from headaches despite current reports of neck pain and diagnosed pathology. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Additionally, the Veteran is not competent to offer the medical opinion that his in-service headaches were caused by his alleged in-service injuries, as he is without the medical training to issue competent medical nexus opinions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges that the private treatment record and the October 2019 VA examiner’s report establish that the Veteran has a cervical spine disability and a thoracic spine disability. Next, in order to prove direct service connection, the Veteran must show that there was an in-service injury, event, or illness and that the Veteran’s disability is etiologically related to such in-service occurrence. The Board acknowledges the buddy statements provided by F.B. and D.G. which attempt to establish or support that in-service injuries occurred. D.G. stated that the Veteran sustained injuries such as bumps, bruises, back strains, and other ailments as a firefighter. However, D.G. has not provided any details regarding these injuries such as when or how they were incurred, and which body parts were affected. Accordingly, the buddy statement from D.G. is afforded low probative value. The Board also acknowledges the January 2013 buddy statement from F.B. However, the only injury described by F.B. that was specific to the Veteran was his description of witnessing the Veteran sustain head and back injuries from impacting the overhead and sides of the cab of the firetruck. The Board affords the description of the Veteran’s injuries provided by F.B. some probative value, however, to the extent that the F.B. described general injuries incurred by firemen that were not specific to the Veteran, the Board affords such statements low probative value. Lastly, the Board acknowledges the Veteran’s complaints of in-service injuries, such as falls, while training and fighting fires, however, there are no supporting treatment records confirming these injuries. The Veteran is competent to report when he began experiencing neck and back pain and his buddies, D.G. and F.B., are competent to report the in-service occurrences they witnessed; however, as laypersons lacking in medical training and expertise, the Veteran and his buddies cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his symptoms. As such, the lay assertions regarding a diagnosis and causation of the Veteran’s neck and back disabilities are of no probative value. Further, even if the Veteran’s opinion regarding the etiology of a current diagnosis of a neck or back disability was afforded some probative value, it is far outweighed by the opinion provided by the October 2019 VA examiner who has greater training and expertise than the Veteran in diagnosing and assessing a spine disabilities. See Jandreau, 492 F.3d at 1377; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Determining the cause of musculoskeletal conditions requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). The October 2019 VA examiner’s medical opinion was factually accurate and considered the rigors of the Veteran’s in-service duties (and in-service headaches), but ultimately concluded that the lack of complaints/diagnoses of neck or back pain during service, in association with the large temporal gap between service and initial manifestations, weighed against medical nexus. The Board finds this VA medical opinion was fully articulated, supported by an explanatory rationale, and it is entitled to significant probative value in this appeal. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Accordingly, there is no probative evidence of a link between the Veteran’s neck and back disabilities and his active service. The Board acknowledges that the record contains a March 2013 private nexus opinion positively linking the Veteran’s spine symptoms to his active duty service. Regrettably, this medical opinion has no probative value as it is conclusory and unsupported by an explanatory rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Moreover, with regard to the years-long evidentiary gap in this case between the claimed in-service injuries and the earliest manifestations of a neck or back disability in 2012, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran’s statements that he began wearing a brace in the 1980s or 1990s, however, such use of a brace was still one to two decades after the Veteran’s separation from service. In addition, while the March 2012 private treatment record notes that the Veteran saw his primary care provider for back pain in the 1980s; again, this is at least a decade after the Veteran’s separation from service and the supporting records have not been made available. In a March 2012 private treatment record, the Veteran reported back pain starting in the 70s; however, the timeline for the Veteran’s initial thoracolumbar symptoms have been conflicting. Additionally, the Veteran did not begin associating the onset of his neck and back disability close to or during service until after he filed a claim seeking service-connected benefits, more than 40 years after separation from service. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest may affect the credibility of testimony). The Board affords greater weight to the August 1970 separation examination showing a normal musculoskeletal system and the August 1970 Report of Medical History—where the Veteran affirmatively denying the presence or history of back trouble of any kind—than the later statements made during treatment after filing a claim for service-connected VA compensation benefits. In sum, the record does not contain probative lay or medical evidence sufficient to establish a medical nexus between the Veteran’s neck and back disabilities and his military service. The preponderance of the evidence is against the claim and service connection for Veteran’s neck and back disabilities must be denied on a direct service connection basis. Additionally, there is no basis to award service connection on a presumptive basis, as there is no probative evidence establishing that the Veteran developed radiograph-confirmed cervical or thoracolumbar spine arthritis to a compensable degree during service or within one year of separation from service, and the record contains no evidence of in-service incurrence or continuity of symptomatology. See 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Arthropathy (i.e., which reasonably encompasses arthritis) is an enumerated condition subject to presumptive service connection consideration as a “chronic disease;” however, as stated above, the evidence does not support this theory of entitlement. In fact, the Veteran did not develop radiograph-confirmed disc diseases until many decades after service. The Veteran’s appeal must also be denied under the presumptive service connection theory of entitlement. 3. Entitlement to service connection for a left upper extremity nerve disability 4. Entitlement to service connection for a right lower extremity nerve disability The Veteran alleged that he had a left upper extremity nerve disability incurred during service or secondary to his cervical spine disability and a right lower extremity nerve disability incurred during service or secondary to his thoracolumbar spine disability. Factual Background Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to left arm or right leg nerve disabilities. March 2012 private treatment records note that the Veteran had low back pain that radiated to the Veteran’s lower extremities greater in the right leg with associated right leg numbness. Nerve conduction testing was also performed in March 2012. The nerve conduction testing revealed findings of L5 radiculopathy, L5 root nerve irritation, and electrophysiologic findings of peripheral neuropathy. A September 2012 private treatment record notes that the Veteran had lumbar pain from lifting heavy boards and using a post hole digger and also experienced radicular right leg pain. An October 2012 private treatment record again notes low back pain with radiating right leg pain. A February 2013 private treatment record notes that the Veteran reported low back pain with associated buttock pain greater in his right buttock than his left buttock. The record also notes that the Veteran reported neck pain with associated arm numbness greater in the left arm than the right arm. An April 2013 private treatment record notes that the Veteran had occasional arm numbness with sleep greater in the left arm but without arm weakness or pain. And, a June 2013 private treatment record noting job-related lumbar pain also noted that the Veteran had associated right leg pain and numbness. The Veteran was afforded a VA examination in October 2019. The examiner noted that the Veteran’s service treatment records were silent for a nerve disorder. The examiner concluded that “[t]he diffuse cervical arthropathy and bilateral upper extremity radiculopathy was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.” The examiner also concluded that “[t]he right lower extremity radiculopathy was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA examiner considered the nature of the Veteran’s in-service duties; the Veteran’s lay reports and the statements of his buddies; and the Veteran’s in-service reports of cramps (as noted in the question prompt), but ultimately concluded that the Veteran’s service treatment records did not contain evidence of a nerve disorder, and the Veteran’s nerve disorder affecting the left upper arm and right lower extremity did not manifest until many years after service. Indeed, the VA examiner’s opinion is supported by the record evidence, as the Veteran’s neurologic system was normal at service separation. In the Report of Medical History completed by the Veteran in August 1970 at service exit, the Veteran affirmatively denied the presence or history of neuritis. Turning to secondary service connection, the October 2019 VA examiner’s report found that there was “no supporting evidence in the [medical] literature to support hearing loss as a cause of right leg and left arm nerve disorders, hence a negative [secondary] opinion was provided.” Analysis Service connection for right lower and left upper extremity nerve disorders is denied on a direct basis, as the Veteran’s service treatment records are negative for in-service neurological symptoms affecting these limbs, and the most probative medical nexus evidence weighs against the claims. The Board acknowledges that the Veteran’s service treatment records contain a single reference to cramps; however all neurological examinations were negative for symptoms or pathology in the right lower and left upper extremities. At service separation the Veteran affirmatively denied a history of neuritis. It was not until the Veteran began seeking service connection that he started attributing these neurological symptoms to his active duty service. The Veteran is competent to report observable symptoms; however he is not competent to diagnose his symptoms as a clinically significant neurological disorder or to opine of etiology of his symptoms, as he is without the necessary medical training and expertise. Jandreau, supra. The October 2019 VA examiner considered all applicable facts but ultimately issued a well-reasoned and factually accurate nexus opinion that weighed against the claim. As the only competent medical nexus evidence on the issue of direct service connection, the Board affords this opinion significant evidentiary weight. In the absence of probative evidence establishing in-service incurrence and medical nexus, the Veteran’s appeal seeking service connection for left upper extremity and right lower extremity nerve disorders on a direct service connection basis must be denied. The Veteran contends and the evidence shows that his left upper extremity nerve disability is secondary to his cervical spine disability and his right lower extremity is secondary to his lumbar spine disability. However, the Veteran has only been granted service connection for tinnitus and bilateral hearing loss. The October 2019 VA examiner relied on medical literature and determined that the Veteran’s left upper extremity and right lower extremity nerve disabilities were not caused by his hearing loss or tinnitus disabilities and provided a negative nexus opinion. Service connection may be granted for a disease or injury which resulted from a service-connected disability or was aggravated thereby. The evidence does not show that the Veteran’s cervical spine or lumbar spine disabilities were related to service and the Board has denied service connection for such. Therefore, service-connection for a left upper extremity nerve disability or a right lower extremity nerve disability on a secondary basis to the spine disabilities cannot be established. There is also no evidence showing a left upper extremity nerve disability or a right lower extremity nerve disability was incurred in or aggravated by military service, as discussed above. Accordingly, while the Board is very sympathetic to the appellant’s situation, service connection for the Veteran’s left upper extremity nerve disability and right lower extremity nerve disability must be denied. M. Galante Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.