Citation Nr: 21028162 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-33 297 DATE: May 10, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disability did not manifest during service, was diagnosed more than one year after service, and is etiologically not related to service. 2. The Veteran's lumbar spine disability did not manifest during service, was diagnosed more than one year after service, and is etiologically not related to service. CONCLUSIONS OF LAW 1. The cervical spine disability did not manifest during service, may not be presumed to have been incurred therein, and is unrelated to service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The lumbar spine disability did not manifest during service, may not be presumed to have been incurred therein, and is unrelated to service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1981 to December 1983. The Veteran was previously represented by an attorney, however in December 2020 the Veteran revoked the power of attorney and remains unrepresented. In December 2019 the Board remanded the issue of entitlement to service connection for a left knee disability, however the issue was subsequently granted in a December 2020 rating decision and thus is no longer in appellate status. Issues 1-2: Entitlement to service connection for a cervical spine disability and lumbar spine disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 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. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that he has had back pain since service when a driver hatch fell on his head due to a faulty latch. See February 2011 claim. He also stated that as an Infantryman he had pain resulting in him having to take Morphine shots at Fort Campbell. Id. The service treatment records show no complaints of, or treatment for a cervical spine disability. Service treatment records dated in November 1981 show the Veteran had low back pain for one week with no injury or history of injury. The assessment was muscle spasm. After service, private medical records in April 2004 show a re-exploration for L4-L5 lumbar microdiskectomy. The diagnosis was right L4-5 recurrent herniated nucleus pulposus. In May 2006 the Veteran underwent a reexploration of lumbar microdiskectomy, L4-L5 transverse lumbar interbody fusion. The diagnoses were right L4-L5 herniated nucleus pulposus and severe degenerative disk disease L4-L5. A MRI in June 2007 associated with records from the Social Security Administration shows multilevel discogenic changes in the cervical spine. A private medical record in August 2008 shows the assessment was cervical, thoracic, and lumbar myofascial pain with lumbar and cervical discogenic involvement. In March 2010 the records show the Veteran underwent cervical spine surgery to include cervical discectomy and fusion. The diagnoses were cervical spinal spondylosis and stenosis. On VA back examination in March 2012, the diagnosis was degenerative disc of the lumbar spine with a history of four back surgeries including in 2000. The examiner noted that x-ray findings show arthritis. The examiner opined that the Veteran's back disability was less likely than not related to service, however at the time of the examination the examiner noted that private medical records needed to be obtained, which were subsequently added to the file. On VA neck examination in March 2012, the diagnosis was degenerative disc disease of the cervical spine. The examiner noted that x-ray findings show arthritis. The examiner opined that the Veteran's cervical spine disability was less likely than not related to service as there is no evidence that the hit in the head could have caused cervical disease, however at the time of the examination the examiner noted that private medical records needed to be obtained, which were subsequently added to the file. The Veteran was provided VA examinations of the cervical spine and lumbar spine in May 2016. While the examiner provided unfavorable etiology opinions, the Board in the February 2019 remand found these opinions to be inadequate and thus they need not be further addressed. On VA examination in March 2020, the diagnosis was degenerative disc disease of the cervical spine shown in 2008 and cervical fusion in 2010. The examiner noted that the August 2008 chiropractic evaluation was silent for any mention of the low back and cervical spine injury, including getting hit in the head by a hatch door during service. The assessment was cervical, thoracic, and lumbar myofascial pain with lumbar and cervical discogenic involvement. The examiner found it significant that service treatment records did not reveal a neck, cervical spine injury, trauma, complaints and or conditions. Thus, the examiner opined that based on the totality of the evidence of record the Veteran's cervical spine disability was not related to service, was not incurred within a year of service as there is no supporting evidence of any diagnosed cervical spine disability stemming from service requiring any sort of continuity of care either in service, within a year of service, or more than 36 years since service with supporting evidence of cervical spine complaints and diagnoses beginning in 2008, 25 years after the Veteran's discharge from service and thus a nexus for service connection cannot be established. As for the lumbar spine disability, the examiner stated that the Veteran had a diagnosis of degenerative disc disease of the lumbar spine in 1999 and a failed lumbar spine fusion. The examiner noted that service treatment records dated in November 1981 show the Veteran had traumatic back pain in his fourth week of training and was diagnosed with muscle spasm, which the VA examiner explained was a soft tissue injury and not a thoracolumbar spine disorder. The examiner further stated that the Veteran was successfully treated and returned to full duty with no further complaints and/or treatment. The VA examiner explained that sprains and strains are extremely common soft tissue injuries that resolve without invasive or surgical intervention and without residuals after a period of 6-8 weeks. The examiner noted that extensive studies have been carried out which confirm the healing process. The examiner found it significant that in 2000 the Veteran was involved in a motor vehicle accident and sustained low back pain and lower extremity radicular pain. Six months later he had an exacerbation of his lower extremity pain while moving a refrigerator and underwent a L4-5 laminectomy. The examiner pointed out that these events were very close in proximity to when the Veteran reported that his low back and cervical spine complaints began. The examiner further found it significant that the Veteran credibly reported to his treating physician that his back pain began without known injury in 1998. Thus, based on the totality of the evidence the VA examiner opined that the Veteran's current lumbar spine disability is not related to service, was not incurred during service or within a year of service as there is no supporting medical evidence of any thoracolumbar spine disorder, specifically stemming from the Veteran's service and requiring any sort of continuity of care, either in service, within a year of discharge from service or more than 36 years since his discharge from service and therefore a nexus for service connection cannot be established. The examiner noted that the Veteran's subjective report of getting hit in the head by a hatch door during service was credible along with the totality of all the evidence of record. As for not considering the lack of continuity of treatment and not basing the opinions solely on the lack of treatment during service, the examiner explained that the opinions are not based on any one thing, including the lack of treatment during service or any other time period but are rather a lengthy thoughtful, systemic process, taking everything into account, the totality of circumstances and facts including but not limited to the Veteran's subjective history, review of the objective support medical evidence, radiographic evidence, and findings of current medical research. For the reasons discussed above the examiner opined that the Veteran's cervical spine and lumbar spine disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the March 2020 opinions to be probative as they were based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the nature of the Veteran's claimed disorders in proffering the opinions. The opinions are consistent and uncontroverted by the other competent evidence of record. In December 2020 the Veteran contended that the March 2020 VA examination is inadequate as it did not comply with the February 2019 Board's remand directives as the examiner did not assume that the Veteran was hit in the head during service and found that service treatment records do not show treatment for these disabilities. The Veteran also stated that the examiner found that there were no complaints of a cervical spine disability and back diagnoses before 2008, however his first surgery was in 2000 and he has had problems with his cervical spine since service. The Veteran submitted medical literature showing that delayed onset of spinal injuries is a well-known phenomenon including articles from The National Hospital for Neurology and Neurosurgery and New England Medical Journal of Medicine. The Veteran also stated that service treatment records from Fort Campbell if reviewed should show that he complained of severe neck and back pain and was given an injection of Morphine. As discussed above, the VA examiner in the March 2020 opinion did accept as credible the Veteran's lay report that he was hit in the head during service. The examiner did not base the opinion solely on the lack of treatment during service and did not consider the lack of continuity of treatment and instead looked at the totality of the evidence in rendering the opinions. The examiner also considered that Veteran's lay and medical history of cervical and lumbar spine disabilities since service to the present. The examiner's opinion also reflects a thorough review of the Veteran's service treatment records. As to the medical literature that the Veteran referenced, the United States Court of Appeals for Veterans Claims has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Wallin v. West, 11 Vet. App. 509 (1998). The Board places little probative value on the literature submitted by the Veteran as it was written to explain general medical principles, and not opinions regarding the specific facts in this case. As a lay person, the Veteran is competent to report symptoms pertaining to the claimed disorders. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of his cervical spine disability and lumbar spine disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Veteran's claimed disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorders. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent the matter of whether it is credible is not reached. Arthritis is included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran is asserting continuity of symptomatology, his assertions are outweighed by the evidence of record discussed above. Accordingly, because the preponderance of the evidence is against the claims of service connection for a cervical spine disability and lumbar spine disability, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.