Citation Nr: 21025109 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-17 312 DATE: April 27, 2021 ORDER Entitlement to service connection for a thoracolumbar spine disability, to include arthritis of the spine is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a back disability that begin in service or within a year of discharge or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine disability are not met. 38 U.S.C. §§ 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to January 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran and his spouse testified before the undersigned in an April 2019 Board hearing. A transcript is of record. The Board remanded this appeal to the AOJ for additional development in July 2019 and August 2020. The AOJ substantially complied with the most recent Board remand directives and the case has been returned to the Board for further appellate review. Entitlement to service connection for a thoracolumbar spine disability The Veteran contends that his current thoracolumbar spine disability is related to service. Specifically, the Veteran contends that his back disability is related to a jeep accident in-service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309 (a), such as arthritis, is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, as will be discussed herein, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in section 3.309(a).” Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s service treatment records (STRs) indicate that the Veteran was in motor vehicle accident in October 1964. STRs note that the Veteran sustained multiple abrasions and broken bones in the Veteran’s arm, hand, and fingers. The Board notes that other than abrasions across the Veteran’s body, no specific spinal/back injury was indicated. STRs indicate that the Veteran had a normal chest film upon arrival to the hospital. The Veteran’s January 1965 separation examination found his spine normal. In June 1965, the Veteran underwent a VA general medical examination. The examiner did not find any abnormalities relative to the Veteran’s spine on physical examination. During the examination the Veteran underwent a chest x-ray which was within normal limits. The examiner noted the October 1964 in-service jeep roll-over accident in which the Veteran sustained multiple abrasions of the entire body, a laceration and compound fracture of the left middle finger and simple fracture of the distal right radius. The examiner noted that the Veteran made an uneventful recovery except for torn lateral ligaments in the interphalangeal joint of the 3rd left finger. His only current complaints were noted to be relative to the flexure contracture of the left 3rd finger which bothered him when he tried to work with fine objects. In December 1991, the Veteran stated he had a diagnosis of a compressed vertebrae in the upper spine (lower neck) in the 1980s. The Veteran stated the pain had become pronounced. VA treatment records indicate that the degenerative changes of the thoracic spine were first identified in December 2014 during a chest x-ray. The Veteran underwent a VA examination in January 2016. The examiner diagnosed the Veteran with degenerative arthritis of the spine. The examiner opined that the Veteran’s claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner reasoned that the service record does not support presence of complaints of a back injury in service. Chest x-rays of in 1965 after the incident showed no compression deformity. The examiner reasoned that if a compression deformity was present one would expect significant back pain requiring service evaluation. A diagnosis of compression fracture of the thoracic spine did not occur until 20 years later. In March 2017, the Veteran stated he was involved in a motor vehicle accident. The Veteran stated that his back pain began bothering him a “number of years” after separation. The Veteran stated his doctor said his back arthritis was as likely as not due to the injury he received in his accident; he indicated that the doctor was deceased and the records unavailable. In April 2019. the Veteran testified in a Board hearing. The Veteran stated that he was in a car accident where he was thrown from his vehicle. The Veteran stated he was taken to hospital where he was treated for multiple injuries. The Veteran stated he mentioned his back, but he stated his provider thought it was just bruised. The Veteran stated that later years he began to have pain in his back. The Veteran stated in 1981 he underwent a physical and the doctor said the Veteran had a compressed vertebra between his shoulders. The Veteran reported he was told that you could only tell about the injury if there was a side view of the back. The Veteran stated that since 1981 he had not received any medical treatment for his back. The Veteran noted that he was given pain medicine for his arthritis, part of which was for his hand. The Veteran stated that after service he worked on vending machines and he had to quit that job because of the pain in his back. The Veteran stated that the pain was between his shoulder blades where his compression was located. In April 2019, the Veteran’s spouse testified that she knew him at the time of the accident. The Veteran’s spouse stated that after the Veteran’s accident his back was hurt so bad that she had to give me back rubs every day. The Veteran’s spouse noted she helped the Veteran with the use of heat pads. She noted that the Veteran still occasionally used heating pads. In May 2019, a private physician provided a medical opinion. The private medical physician stated there is no definitive evidence for or against that the Veteran suffered a compression fracture during his jeep accident, but given his upper back pain began a year after the accident and that compression fractures usually occur in the lumbar spine instead of the thoracic region, it is very “plausible” the Veteran suffered a compression fracture of the thoracic spine in the accident. In October 2019, the Veteran underwent a VA examination. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner reasoned that x-rays studies in October 2019 showed five lumbar vertebral bodies, ordinary alignment, and generally preservation of the disc spaces without acute radiographic abnormality. The examiner noted that in addition the range of motion of the thoracolumbar spine was normal on examination and there was not significant loss of motion of the spine or deficits noted. The examiner stated that it is unlikely that the degenerative arthritis began in such a young claimant within a year of the accident as degenerative arthritic changes are not commonly noted in patients under 25 without diagnosis of arthritis and subsequent treatment to minimize the arthritic process. The examiner further stated it is unlikely that the symptoms manifested within a year after discharge for the above reasons and the record is silent with regards to treatment of back symptoms that are related within a year post discharge. In October 2020, VA obtained an addendum medical opinion. The examiner opined that after a review of the records, it is unlikely that the degenerative arthritis began in such as young patient within a year of the accident, as degenerative arthritis changes are not commonly noted in patients under 25 without a diagnosis of arthritis and subsequent treatment to minimize the arthritic process. The examiner stated that it is unlikely that the symptoms manifested within a year after discharge for that reason and the record is silent with regards to treatment of back symptoms that are related within a year post discharge. The examiner further noted that compression fractures of the spine usually occur at the bottom part of the thoracic spine and the first vertebra of the lumbar spine, and it is unlikely that the Veteran had a compression fracture as the chest x-rays of 1965 after the incident showed no compression deformity. The examiner found the Veteran’s deformity is in the upper to mid thoracic spine, which makes this deformity unlikely related to the motor vehicle accident. The examiner further explained that compression fractures of the spine generally occur from too much pressure on the vertebral body. This usually results from a combination of bending forward and downward pressure on the spine. The examiner explained that if the fracture is caused by a sudden, forceful injury, it would cause severe pain in the back, legs, and arms as well as weakness and numbness in those areas if the fracture injuries the nerves of the spine. The examiner noted that it is unlikely that there was a fracture of the thoracic region without severe pain. The examiner stated that although the Veteran and his wife stated he experience pain after discharge, there appeared to be no record of treatment afterwards. If pain was present, then this pain was likely severe pain and consultation for treatment would have been made. In November 2020, the October 2020 examiner provided another addendum opinion. The examiner stated that the testimony of the Veteran’s spouse was considered and her testimony alone would not suffice to concede the continuity of symptomatology in the absence of medical documentation as with the degree of pain that was stated, there would have been treatment sought and documentation of such treatment. Where, as here, there are conflicting medical opinions in the claims file, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner’s opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D’Aires v. Peake, 22 Vet. App. 97 (2008). While the Veteran and the Veteran’s spouse are competent to report having experienced symptoms of a back disorder and when they began, he is not competent to conclude that he has arthritis of the spine, as shown by radiological testing, that has persisted since service or is otherwise attributable to service, in the absence of medical training and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, the evidence of record, taken as a whole, does not accord with his contention that he experienced upper back pain in service that has continued to the present day as reflected by the total lack of medical records reflecting treatment for a spine condition prior to 2014 (or as reported by the Veteran, the 1980’s). Notably in the Veteran’s initial application for VA benefits in March 1965, the Veteran only claimed service connection for “stiff and bent finger left hand.” And, the subsequent VA examination in June 1965, (6 months after the Veteran’s discharge from service and the hospital) the Veteran had a general examination. The Veteran failed to indicate that he had any back pain and in fact, reported that the only residual of the motor vehicle accident involved his left 3rd finger. It is likely that if the Veteran were experiencing daily back pain that required regular massage, he would have reported it at the time of the VA examination which was conducted to assess the accident residuals. Finally, the Veteran stated in March 2017, that his back pain began a number of years after his release, which is contradictory to his and his spouse’s more recent statements that the pain began right after his release from service, but which is consistent with his December 1991 statement that he had a diagnosis of compressed vertebrae in the upper spine (lower neck) in the 1980s and that it had currently become pronounced for pain. The Board finds that the October 2019 VA examiner’s opinion, with accompanying addenda in October and November 2020 is more probative than the private May 2019 opinion. The VA examiner provided a rationale that took into consideration the Veteran’s documented medical history of treatment for back symptoms and accounted for how compression injuries occur and how they relate to the Veteran’s motor vehicle accident. The May 2019 private opinion, by contrast, use of the term “plausible” is speculative in nature and thus is inadequate to meet the legal requirement of a nexus between a current claimed disability and service. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). The Board finds that service connection for arthritis of spine is not warranted. The Veteran was involved in a documented motor vehicle accident in service. However, the preponderance of the most probative evidence of record is that the motor vehicle accident did not cause the Veteran’s arthritis of his spine. Notably, the October 2019 VA examiner’s opinion, with accompanying addenda in October and November 2020 found the Veteran’s spine arthritis is less likely than not caused by his in-service motor vehicle accident. There is no probative evidence to the contrary. The Board has also considered continuity of symptomatology as arthritis is considered a chronic disease based on 38 C.F.R. § 3.303. The Board finds, however, that this condition was not noted during service and that continuity of symptomatology has not been established. The Board does note the Veteran’s contentions of continuous back pain since service. However, as his separation examination was normal and no back complaints, findings, or diagnosis were found on the June 1965 VA examination, the Board finds these statements unsupported by the record, and thus, not dispositive on this point. The Board notes that the Veteran’s representative argued that the October and November 2020 addendum medical opinions were not adequate. Specifically, the representative argues that the examiner relied the absence of evidence of treatment or complaint for his back pain. However, these opinions did not solely rely on the lack of treatment or of complaint, but rather the totality of the evidence as it related to the Veteran’s back disability, to which lack of treatment was only a part of his analysis. Notably, the examiner discussed how a compression fracture occurs in relation to sudden trauma. As noted, the Board finds these opinions probative and therefore, adequate.   Accordingly, the Board finds that the claim of entitlement to service connection for a thoracolumbar spine disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.