Citation Nr: 21027697 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-43 297 DATE: May 6, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a neck disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current low back 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 the Veteran's current neck 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 a low back disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to September 1991 and from February 2003 to October 2003. This case is before the Board of Veterans' Appeals (Board) on appeal from April 2016 and October 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office. The Veteran initially requested Board hearings on the issues on appeal, but submitted written withdrawal requests. See September 2018 Correspondence and November 2018 Statement in Support of Claim. In April 2019, the Board remanded the matters for further development. Now the matters are returned to the Board. The Veteran is seeking service connections for a low back disability and a neck disability. The evidence of record does not contain the Veteran's specific contentions as to the etiology of his claimed disabilities, but it suggests that he is contending that performing heavy lifting during active duty service as a cannon crewmember is related to his current conditions. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. 1. Low back disability First, the evidence of record shows the current diagnoses including lumbosacral strain and intervertebral disc syndrome. See e.g., December 2020 Back Conditions Disability Benefits Questionnaire (DBQ). Thus, the first Shedden element for service connection is met. As to the in-service incurrence of the Veteran's low back disability, his service treatment record does not contain any complaints, diagnosis, or treatment related to a low back condition. However, the evidence shows that the Veteran complained of back muscle spasm in January 2003 and indicated that he was going into active duty service the next day. See January 30, 2003 Primary Care Note. Considering the close proximity of this complaint to the Veteran's start of the second active duty period which began on February 3, 2003, the Board resolves reasonable doubt in the Veteran's favor and finds that the second Shedden element for service connection is also met. In January 2019, the Veteran's private treating physician R.C. provided that the Veteran underwent a back surgery in December 2018, and he has a chronic and degenerative condition that could have been caused by excessive heavy lifting. The Board notes that Dr. R.C. did not opine as to the causal link between the Veteran's current low back condition and active duty service in the January 2019 letter. However, Dr. R.C. provided another letter in August 2020. In the August 2020 letter, Dr. R.C. reiterated that the Veteran has a chronic and degenerative condition that could have been caused by excessive heavy lifting and strenuous activities, and opined that his condition and sequelae are consistent with the type of injuries that he may have sustained in active duty service. Dr. R.C. did not describe the type of injuries the Veteran may have had in service or provided any further rationale. The Board finds Dr. R.C.'s opinion letters to be competent and credible evidence, but is unable to assign high probative weight as it lacks does not offer any details of the injuries that the Veteran has sustained in service. On August 2018 VA examination for back conditions, the examiner noted the Veteran's diagnosis of severe multilevel degenerative changes with severe canal and foraminal stenosis of the lumbar spine, but opined that the Veteran's current condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's post-deployment assessment is negative for symptoms during active duty service period that could be related to the current lumbar spine condition. The examiner also provided that current medical literature does not show that heavy weight handling promotes degenerative changes of the spine, and the Veteran's lumbar spine condition is related to severe atraumatic degenerative changes that can occur as part of aging process, which can be more severe in some individuals than others. The Board notes that another VA examiner also gave a negative etiology opinion in December 2020. The December 2020 examiner provided that medical literature only supports increase in prevalence in low back pain in patients with over 10 years in strenuous labor conditions, which increases further after 20 years. The examiner pointed out that while the Veteran spent more than 10 years in the National Guard, less than 2 years of that time was spent in active duty/deployment which would be consistent with strenuous activity. The examiner also noted that there was no evidence of back injury or pain during his active duty service that would be an independent risk factor for development of back pain in the future. The Board finds the December 2020 VA examiner competent and credible, and assigns high probative weight to the examiner's opinion as it was rendered after a review of the Veteran's records and medical literature in conjunction with an in-person examination of the Veteran. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's current low back disability began during active service, or is otherwise related to an in-service injury or disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. Neck disability The evidence shows the Veteran's current diagnoses of degenerative arthritis of the cervical spine and degenerative joint disease. Thus, the first Shedden element for service connection is met. However, the evidence of record does not contain any in-service complaints, diagnosis, or treatment related to a neck condition. The Board also notes that the Veteran has not provided any lay evidence as to the onset of his current neck symptoms or account of any in-service injuries related to a neck condition. See also August 2018 and December 2020 Neck Conditions DBQs (the Veteran did not provide any reports of a neck injury or an onset of his neck symptoms in service). Thus, the Board finds that the second Shedden element for service connection is not met. The Board notes that medical opinions on the etiology of the Veteran's current neck disability have been obtained in August 2018 and December 2020, and both VA examiners opined that the Veteran's current neck disability was less likely than not incurred in or caused by the in-service injury, event, or illness. The December 2020 examiner noted that the Veteran has chronic neck pain associated with previous herniated disc with subsequent fusion, but prior strenuous work is not a risk factor for later development of cervical stenosis in the absence of trauma or injury, neither of which the Veteran experienced during active duty service. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's current neck disability began during active service, or is otherwise related to an in-service injury or disease. The benefit-of-the-doubt doctrine does not apply here as the preponderance of the evidence is against the Veteran's claim. Consequently, the Veteran's entitlement to service connection for a neck disability is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.