Citation Nr: 21021870 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-28 124 DATE: April 14, 2021 ORDER Entitlement to service connection for cervical-spine disorder, to include as secondary to left-shoulder disorder, is granted. Entitlement to service connection for thoracolumbar-spine disorder is denied. FINDINGS OF FACT 1. The objective medical evidence shows that it is as likely as not that the cervical-spine disorder is directly caused by the wearing and carrying of heavy equipment on the Veteran’s person during active service, thereby establishing chronicity and a nexus of the Veteran’s in-service complaints of neck pain with his current disability. 2. The objective medical evidence shows thoracic-spine disorder was not incurred in active service and is not caused by an event, injury, or illness during active service. Arthritis was first demonstrated years post-service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for service connection for cervical-spine disorder on a direct basis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for thoracic spine disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 2003 to December 2003 and from December 2004 to November 2006. In February 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board denied the claims on appeal in August 2019. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court), which vacated the denials and remanded these issues to the Board in June 2020. The Board in turn remanded the claims in November 2020 for new VA examinations and opinions, which are now of record. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, 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 for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service; and(3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of or made worse beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310. Moreover, service connection of a nonservice–connected disease or injury will be established if an increase in severity of the nonservice–connected disability is shown to be proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonservice–connected disease or injury. 38 C.F.R. § 3.310 (b). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 1. Entitlement to service connection for cervical-spine disorder, to include as secondary to left-shoulder disorder. The Veteran’s service treatment records (STRs) show that, in the January 2002 enlistment examination, all categories of body systems and body segments were checked off normal, except for feet. The Veteran denied any current or past disorders. The STRs do not include a separation examination. The October 2004 Pre-Deployment Health Assessment shows the Veteran’s denial of any medical disorders and his statement of being in excellent health. In the October 2006 Post-Deployment Health Assessment, the Veteran denied current symptoms or those during deployment of back pain. He stated his health was “very good,” he reported his health stayed about the same or got better and he stated no questions or concerns about his health. No referrals were made by the examiner. In the post-active-service record, June and July 2007 VA orthopedic consult notes in regard to the Veteran’s left-shoulder disorder found on examination that the cervical spine showed full range of motion without evidence of cervical spondylosis foraminal stenosis. The September 2007 MRI which followed revealed small bulging at C3-4 and C4-5, but no neural impingement of the cervical spine. However, a September 2007 VA electromyograph (EMG) and nerve conduction study showed evidence of left C5/6 radiculopathy with evidence of ongoing denervation. A second treatment provider diagnosed possible cervical radiculopathy. In November 2007, the Veteran underwent a procedure for trans-laminar cervical epidural steroid injection under a fluoroscope and a cervical epidurogram. By November 2007, the Veteran was noted as demonstrating “an excellent range of cervical spine motion without reproduction of symptoms.” A July 2017 note by the Veteran’s VA primary care physician noted the Veteran’s report of chronic neck pain. On general examination, she found no joint swelling or erythema, the cervical neck had full range of motion and some cervical paraspinal cervical-neck tenderness. Between July 2017 and September 2017, the Veteran presented to Dr. E.J. for private treatment for both his cervical and thoracic spine. In February 2019, Dr. E.J. opined that, “[b]ased upon the subjective and objective evidence that I have evaluated today, I feel with a high degree of medical probability that the patient’s complaints are causally related to injuries that he sustained while serving as [sic] active duty in 2005.” He explained, “In reviewing his x-rays, I find NO evidence of degenerative changes which would have been from issues spending [sic] earlier in 2005. Also since the patient denies any of the current chief complaints[’] symptoms prior to the 2005 service time, it reinforces my opinion.” As directed in the Board’s November 2020 Remand, the Veteran was afforded a January 2021 VA examination for cervical-spine conditions, in which the VA examiner stated September 2007 diagnoses for bulging disc at C3-4 and annular disc at C4-5 and left-upper-extremity radiculopathy. She noted the Veteran’s reports of worsening neck pain, with numbing and difficulty in certain head movements. Among examination findings and testing results was mild left-upper-extremity numbness and tingling. There was no intervertebral disc syndrome (IVDS). Available imaging studied did not document degenerative arthritis. The January 2021 VA examiner rendered a series of opinions. She first opined that cervical-spine disorder was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. She explained in her rationale the Veteran during active service wore a ballistic vest weighing approximately 25 pounds plus additional ammunition or a rucksack, but prior to military service the Veteran had no issues related to cervical-spine disorder. She concluded that the current diagnosis of a bulging disc at C3-4 and an annular disc at C4-5 is related to wearing the ballistic vest and carry equipment. There is evidence of chronicity and a nexus has been established. The Veteran first reported neck pain 9/2007 which is less than 1 year of separation [from] military service, followed by imaging dated 9/24/2007 of bulging disc at C3-4 and annular disc C4-5. The Veteran had continued neck complaints over the years to include 11/07/2007 at the West Palm Beach VAMC when he considered a cervical epidural, 5/30/2012 received care from the Waldron Chiropractic Health Center, and on 7/06/2017 at Lake Baldwin CBOC assessment of chronic neck pain was made. In a separate positive opinion, the January 2021 VA examiner noted that she reviewed the Veteran’s September 2007 and March 2013 lay statements, as directed in the Board’s November 2020 Remand, and her conclusions above were the same. The Board’s November 2020 Remand also requested the January 2021 VA examiner to consider and comment thoroughly on the February 2019 positive opinion for service connection of Dr. E.J. and resolve the conflicting evidence of this opinion with evidence of the Veteran’s in-service record, in which he gave no reports or complaints of and received no treatment or diagnosis for cervical-spine disorder, with particular attention given to the Veteran’s October 2006 Post-Deployment Health Assessment. The January 2021 VA examiner offered a separate opinion, stating, I fully agree with the opinion of Dr. D.K.W. It is plausible to determine even without evidence of injury or complaints during military service that the Veteran’s neck condition was caused by the Veteran’s training and requirement of wearing ballistic vest weight approx. 25 lbs. plus additional ammunition or rucksack. The Veteran first reported neck pain 9/2007 which is less than 1 year of separation of military service, followed by imaging dated 9/24/2007 of bulging disc at C3-4 and annular disc C4-5. Those findings are likely d/t [due to] trauma/injury/strenuous activity consistent with the training the Veteran reports. I totally disagree with the C&P examiner dated 7/21/2020. It is true that degenerative disc disease is an ordinary disease of life and [] more common with advancing age, but less common at age 23 w/o [without] other external factors. Based on the medical evidence of record and the foregoing opinions, the Board finds the it is as likely as not that the evidence supports the claim for direct service connection for cervical-spine disorder.   2. Entitlement to service connection for thoracolumbar-spine disorder. The STRs show that, in July 2002, the Veteran presented with mid-back pain in the previous four days, incurred during physical training. On examination he exhibited spasms and tenderness to palpation. For the remainder of the Veteran’s active service through November 2006, there are no complaints of or further treatment for a thoracic spine injury or disorder. The post-active-service record shows that, in May 2012, the Veteran’s private treatment chiropractor, Dr. D.K.W., after noting the Veteran’s history of carrying heavy gear while deployed overseas, opined that “it is more likely than not that the veteran’s current back problems are a result of the intensity of his duties during his service in Afghanistan.” He explained that the Veteran received extensive training during his tour of duty in Afghanistan, which required him to wear his ballistic vest weighing approximately 25 pounds plus additional ammunition or ruck sacks as needed and he spent a total of two (2) years conducting foot patrols with many pounds of gear on. “Upon review of the veteran’s medical history before and after his tour of duties, it is apparent that he did not have any of these back issues before the service. Although he has continued to work after leaving the service, I do not feel that any of these occupations would contribute to the back problems the veteran presents with and is being treated for today.” The Veteran presented in July 2012 for a VA examination for thoracolumbar spine, in which he was diagnosed with mild degenerative changes of the thoracic spine. The July 2012 VA examiner found no radiculopathy, no intervertebral disc syndrome (IVDS) and arthritis had not been documented in imaging studies. After various testing, she opined that degenerative disc disease thoracic spine was less likely than not (less than 50 percent probability) incurred in or caused by the by weight of a ballistic vest and ammunition that occurred in service in Afghanistan. She explained in her rationale that during active service the Veteran complained of acute onset of mid-back pain for 4 days with no evidence of chronicity; however, there is no evidence in the medical literature that carrying rucksack during training or during the period of military service would cause thoracic spine arthritis. She added, “The medical opinion noted by the chiropractor who just saw the veteran recently in 2012 [Dr. D.K.W.] was respectfully considered. According to the medical literature, [d]egenerative disc disease is an ordinary disease of life to which the general public is equally exposed.” The Veteran’s VA primary care physician in July 2017 noted the Veteran’s report of chronic mid-to-lower-back pain at 3-4 intensity on average. On general examination, there was no joint swelling or erythema and “no paramuscle tenderness lumbar spine.” In the January 2021 VA examination for thoracolumbar-spine conditions, the January 2021 VA examiner stated Dr. E. J.’s February 2019 diagnosis of segmental dysfunction of the thoracic spine. She noted the Veteran’s reports of worsening symptoms over the years, now daily at 5-6 in intensity, with stiffness, with radiating pain into both buttocks. Examination and testing revealed no radicular symptoms or IVDS. There were no imaging studies available to document arthritis. She first opined that thoracolumbar-spine disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She explained in her rationale the enlistment examination was negative for the disorder, no separation examination is available and during active service there is no evidence of a back disorder, back pain, or back treatment. Although the Veteran reported during her examination that he was treated with Ibuprofen on more than one occasion during military service, the January 2021 VA examiner noted she was unable to confirm that claim with the medical records provided. She added, “However, there is a progress note dated 2/18/2019 by Dr. E.J. of Synergy Oviedo Chiropractor, Oviedo, FL. that has been reviewed and a statement dated 5/30/2012 by Dr. D.K.W. of Chiropractor Health Center, P.A. Sebring, FL. that has been reviewed and respectfully considered. Also, from the board hearing testimony dated 2/12/2019 the Veteran’s reasons for not reporting signs and symptoms of his disorders while in service and not pursuing benefits afterwards have been reviewed and respectfully considered.” Nonetheless, she concluded, “A nexus has not been established.” In a separate additional negative opinion for direct service connection, she further explained, “Lay statements dated 9/04/2007 and 3/07/2013 reviewed and respectfully considered. However, during military service there is no evidence of any back complaints, and/or treatment for such. A nexus has not been established.” Concerning conflicting evidence, the November 2020 Remand specifically requested the January 2021 VA examiner to consider and comment thoroughly on the May 2012 private treatment positive opinion for service connection of Dr. D. K.W. and the July 2012 VA examiner’s negative opinion and resolve this conflicting evidence. She stated, I disagree with the statements of Dr. D.K.W. dated 5/30/2012. Although, there is no evidence of any back problems prior to military service[,] [t]here is equally no evidence of any back problems during military service. Furthermore, there is more than a 6 year gap of documentation or lack of back complaints or documentation until 2012. I agree with the negative opinion from the C&P exam dated 7/20/2012, but for different reasons. If there was degenerative arthritis of the thoracic spine[,] it would likely be due to trauma and/or wear and tear which would be uncommon at his age during the exam. However, I disagree with the diagnosis of thoracic degenerative changes. There is no x-ray report and [the] note dated 2/18/2019 by Dr. E.J. reports no evidence of degenerative changes. A nexus has not been established. Nonetheless, the Board will briefly note here that, as the July 2012 VA examiner did diagnose thoracic degenerative changes, thereby suggesting arthritis, that disorder falls within the chronic diseases eligible for presumptive service connection. 38 C.F.R. § 3.309 (a). However, the record offers no evidence of arthritis in service or the manifestation of arthritis to a compensable degree within one year of separation from active service. Additionally, because arthritis was never identified in service, and putting aside the lack of medical evidence of treatment for arthritis at that time, it is otherwise impossible to establish continuity of symptomatology based on the identification of symptoms during service and relating such symptoms to any current arthritic disorder the Veteran has, particularly after the “6 year gap of documentation” noted by the January 2021 VA examiner. Consequently, the presumption of service connection for arthritis as a chronic disease, as associated with thoracolumbar-spine disorder, is not available to the Veteran. The Board has carefully considered the Veteran’s February 2019 Board hearing testimony and his lay statements, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board is well aware lay persons are competent to report on matters they observe or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which he feels and sees and there is no reason to doubt his credibility. However, his lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran contends that his thoracolumbar-spine disorder is caused by wearing heavy ballistic-vest plates, as well as carrying on his person ammunition belts and a rucksack during long periods of walking and from exiting from vehicles precipitately and by jumps. The Board in its November 2020 Remand enlisted a VA examiner’s consideration of the Veteran’s testimony, statements, and reports for the formulation of opinions. The January 2021 VA examiner has accomplished this, as set forth above. Additionally, the Board will note here that the May 2012 opinion of Dr. D.K.W. is partly based on the Veteran not reporting symptoms prior to active service. Dr. D.K.W. adds that, although the Veteran worked after service, Dr. D.K.W. “do[es] not feel” his post-service work would contribute to his current disorder. Yet, the passage of time from active service to treatment by Dr. D.K.W. is substantial. There is no indication that Dr. D.K.W. was familiar with the record of treatment or was apprised of work-task requirements and/or injuries since active service, except by the reports of the Veteran. Moreover, Dr. D.K.W.’s conclusion fails to address the STRs in a sufficiently clinical manner. For example, he asserts that “it is apparent that [the Veteran] did not have any of these back issues before the service.” Yet, he fails to mention that it is equally apparent from the October 2006 Post-Deployment Health Assessment that the Veteran did not have back issues directly after returning from the very circumstances of bearing excessive weight on patrols about which he complains. For these reasons, the Board assigns significantly limited probative value to Dr. D.K.W.’s opinion. The Board therefore assigns greater probative value to the findings of the July 2012 and January 2021 VA examiners, as they are medical professionals, who conducted in-person examination and testing of the Veteran, they thoroughly reviewed of the Veteran’s medical history and his testimony, statements and reports and their opinions, for the reasons stated above, their conclusions are clinically sound. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. at 302-04. The Board has considered the benefit-of-the-doubt; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and this claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.