Citation Nr: 21028238 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-21 889 DATE: May 10, 2021 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The Veteran's neck disability, diagnosed as degenerative disc and joint disease, was not noted in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability was not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's low back disability, diagnosed as degenerative disc and joint disease, was not noted in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability was not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to June 1971. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for neck and low back disabilities. The Board notes that the Veteran was scheduled for a travel Board hearing in November 2016. He failed to appear for said hearing, and he has not since asked for it to be rescheduled nor has he provided good cause for his failure to appear. Accordingly, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). This case has a lengthy procedural history. In July 2017, April 2019, and September 2020, the Board remanded the claims for further evidentiary development. Service Connection 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. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a neck disability is denied. The Veteran contends that he fell numerous times during active duty as a radio operator and experienced neck and back injuries. He contends that he did not seek treatment for his injuries during service because he was not "bleeding and close to death" and did not realize he should have sought treatment. See August 2010 Veteran's correspondence received September 2010. The Veteran's service treatment records (STRs) are negative for complaints, observations, or treatment regarding a neck disability. At his January 1971 separation examination, the Veteran's spine was examined and found to be normal. A March 2003 MRI examination of the cervical spine found multilevel mild central stenosis and multilevel foraminal narrowing. See March 2003 treatment record from C.H.C.S. The Veteran was afforded a VA examination in March 2011. The examiner, inter alia, noted diagnoses of cervical spinal stenosis and cervical spine degenerative joint disease. The Veteran reported that he first experienced neck and back pain while serving as a radio operator in Vietnam. He reported that he was thrown to the ground many times while serving in Vietnam and had experienced neck and back pain since that time, which had increased in severity. The examiner opined that it was less likely than not that the Veteran's neck disability occurred as a result of service-related trauma. In this regard, the examiner noted that there was no evidence of a spinal injury or spine condition in the Veteran's STRs and the Veteran did not complain of such during active service. The Veteran was afforded a VA examination in October 2017. The examiner noted diagnoses of multilevel degenerative disc disease of the cervical spine and multilevel foraminal narrowing. The Veteran reported that he began experiencing neck pain after service in approximately 2001. He reported that he never complained of neck pain, nor was he diagnosed with a neck condition, during service or immediately thereafter. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion. The examiner opined in pertinent part, It is to be pointed out that there w[ere] no complaints, diagnosis or treatment for a neck condition found during service or immediately after service. Likewise his separation exam dated 1/21/1971 was silent for a neck complaint. In fact the 1st documented record of a neck complaint was in 2000, 29 years after his release from active service. Vet[eran']s statement that his neck pain started during service was duly considered, however, it is to be pointed out that Vet[eran']s complaint was vague, with no specificity of when, where and how the injury occurred. He stated today during this exam that it started during service while in combat in Vietnam. In my opinion, this lack of symptoms or complaints during service, and the 29 yrs time interval for appearance of symptoms negates the possibility of SC [service connection]. In a November 2019 addendum opinion, the October 2017 VA examiner indicated that he had already given an opinion regarding the Veteran's neck disability and that he stood on that opinion. Another addendum opinion was obtained in February 2021. After review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran's neck. The examiner opined, I reviewed all available medical records from his entrance into military service to the present. I took notice of the requests in the remand dated 9/23/2020. I reviewed the reports of neck examination from 10/11/2017 and the MO [medical opinion] formulated in 11/2019. All radiographs and EMG reports were reviewed. On 3/25/2003, at the time of evaluation for a diffuse polyneuropathy, a neck MRI showed the incidental findings of multilevel cervical degenerative disc disease including spinal stenosis, with no evidence of radiculopathy. The STRs as well as the exit physical are silent on any neck injury/condition during service, or within a year following separation. There is a period of 32 years between leaving service and first evidence of cervical DJD. I reviewed the evidence based medical literature. According to Medscape Emedicine, on imaging, "90% of men older than 50 years and 90% of women older than 60 years have evidence of degenerative changes in the cervical spine." This Veteran was 54 yo at time of diagnosis. There is no nexus. After a review of the evidence, the Board finds that service connection is not warranted for a neck disability. With regard to the first element of a service connection claim, the evidence shows that the Veteran has a current neck disability. The March 2011 and October 2017 VA examinations noted diagnoses of cervical spinal stenosis, cervical spine degenerative joint disease, multilevel degenerative disc disease of the cervical spine, and multilevel foraminal narrowing. In addressing the second element, the Veteran reports in-service injuries when he fell on multiple occasions as a radio operator. Despite the reported in-service injury, the service treatment records reflect no in-service disease. As set forth above, the Veteran's spine was examined and determined to be normal at separation, reflecting that a chronic disability had not developed as of that time. With respect to the third element, the nexus requirement, the Board finds that the probative evidence is against a finding that the Veteran's neck disability is causally related to active service, including the reported in-service injuries. The Board assigns great probative weight to the February 2021 VA medical opinion, as the examiner reviewed the Veteran's claims file in its entirety. After considering the record, the examiner concluded that the Veteran's neck disability was not causally related to active duty. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran's neck disability was not causally related to service, explaining that the nature of the current pathology was consistent with aging and not an in-service injury. She considered the Veteran's reports of the in-service injury and symptoms but ultimately explained that the current pathology was inconsistent with an in-service incurrence, particularly in light of the lack of treatment in service. There is no medical opinion evidence to the contrary. The Board assigns less probative weight to the March 2011 VA examination which was found to be inadequate in the July 2017 Board remand to the extent the examiner based his opinion solely on the absence of treatment in service and failed to consider the Veteran's lay statements regarding his neck injuries and subsequent pain during active duty. The Board also assigns less probative weight to the October 2017 VA examination, which was found to be inadequate in the April 2019 Board remand to the extent the examiner failed to address the Veteran's reports of in-service neck injuries and ongoing symptoms since discharge. In addition, the Board assigns less probative weight to the November 2019 addendum opinion, as the examiner merely stated that he stood on his prior opinion and did not provide further rationale. The Board also assigns less probative weight to the Veteran's statements indicating that his neck disability was caused by active duty. Although the Veteran is competent to describe symptoms, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the February 2021 VA examiner, given her clinical expertise and the rationale she provided. In reaching this decision, the Board has considered the fact that the Veteran has been diagnosed as having degenerative disc and joint disease, an enumerated disease under 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the disability was not shown as chronic in service, did not manifest to a compensable degree within the presumptive period, and was not noted in service with attributable continuity of symptomatology. As set forth above, the Veteran's service treatment records contain no indication of a neck disability. Notably, at his January 1971 separation examination, the Veteran's spine was examined and found to be normal. The post-service record on appeal shows that the Veteran was not diagnosed as having degenerative disc and joint disease for decades after his separation from active service and well outside the applicable presumptive period. While the record contains the Veteran's recollections that he developed neck pain during active duty which continued to the present, and he is certainly competent to report having experienced such symptoms, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative disc or joint disease as the Veteran has not demonstrated the necessary medical expertise. Jandreau, 492 F.3d 1372, 1377, 1377 n.4. Based on the foregoing, as the probative evidence is against the Veteran's claim of service connection for a neck disability, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran's claim for a neck disability is denied. 2. Entitlement to service connection for a low back disability is denied. The Veteran contends that he fell numerous times during active duty as a radio operator and experienced neck and back injuries. He contends that he did not seek treatment for his injuries during service because he was not "bleeding and close to death" and did not realize he should have sought treatment. See August 2010 Veteran's correspondence received September 2010. The Veteran's STRs are negative for complaints, observations, or treatment regarding a back disability. At his January 1971 separation examination, the Veteran's spine was examined and found to be normal. An April 2006 X-ray of the lumbar spine showed multilevel lumbar spondylosis with spondylolisthesis at L5-S1. See Medical Treatment Records received February 2009. A September 2009 MRI of the lumbar spine found bilateral pars defects L5-S1 with grade 1 anterior subluxation L5 relative to S1, associated disc bulging with moderate foraminal narrowing on the left and mild foraminal narrowing on the right, and L3-L4 disc bulging with a left paramedian disc protrusion and annular tear. See September 2009 MRI Report. The Veteran was afforded a VA examination in March 2011. The examiner, inter alia, noted a diagnosis of lumbar spine multilevel degenerative joint disease. The Veteran reported that he first experienced neck and back pain while serving as a radio operator in Vietnam. He reported that he was thrown to the ground many times while serving in Vietnam and had experienced neck and back pain since that time, which had increased in severity. The examiner opined that it was less likely than not that the Veteran's low back disability occurred as a result of service-related trauma. In this regard, the examiner noted that there was no evidence of a spinal injury or spine condition in the Veteran's STRs and the Veteran did not complain of such during active service. The Veteran was afforded a VA examination in October 2017. The examiner noted a diagnosis of multilevel degenerative disc disease. The Veteran reported that he injured his back during service but did not complain of back pain at that time. He reported that he began seeking treatment for his back in approximately 2000. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion. The examiner opined in pertinent part, It is to be noted that review of str's from 1966 to 1971 did not show any complaints, diagnosis or treatment for a back condition. His separation exam dated 1/21/1971 was also silent for a back condition. It was not until 2000 that he said he sought medical attention for the condition and it was not until 2014 that x-rays documented a specific back condition. His contention that his back condition started while deployed in Vietnam was duly considered, however, it is to be pointed out that his complaints were vague with no specificity on when, where or how injury occurred during his deployment. Also to be noted is the 29 yrs time period that elapsed from release from active service in 1971 to his initial back complaint around 2000. In my opinion, this 29 yrs time interval from active service to initial complaint of a back condition negates the possibility of a SC. In a November 2019 addendum opinion, the October 2017 VA examiner indicated that he had already given an opinion regarding the Veteran's low back disability and that he stood on that opinion. Another addendum opinion was obtained in February 2021. After review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran's low back. The examiner opined in pertinent part, I reviewed all available medical records from his entrance into military service to the present. I took notice of the requests in the remand dated 9/23/2020. I reviewed the reports of back examinations from 10/11/2017 and the MO formulated in 11/2019. This Veteran served in the USMC 3/10/1967 6/25/1971, with 3 tours in Vietnam. On the 3/11/2011 C&P evaluation, this Veteran reported having chronic back pain that he attributed to repeatedly throwing himself to the ground while working as a radio operator in Vietnam. However, during this entire period, I was not able to find any evidence of medical evaluation/treatment for any back injury/condition, in the STRs. His exit physical on 1/21/1971 is silent as well on a back condition. Records show that he had an extensive diagnostic evaluation for symptoms of diffuse sensory motor peripheral neuropathy starting in 2003. It is not until 4/10/2006 that a plain XR of his lumbar spine revealed multi-level lumbar DJD. A lumbar MRI dated 9/3/2009 showed disc bulging and annular tear at L3-L4. It is to be noted that the Veteran was 57 yo at time of lumbar spondylosis diagnosis (DJD) and these findings are common in this age group cohort, per review of medical literature. Degenerative disc disease (DDD) is fairly common, and it is estimated that at least 30% of people aged 30-50 years old will have some degree of disc space degeneration. In fact, after a patient reaches 60, some level of disc degeneration is a normal finding on an MRI scan, rather than the exception. There is no medical evidence of back condition diagnosed during service or within 1 year following discharge. Records also show a period of 35 years between leaving service and the diagnosis of lumbar spondylosis, there is no nexus. After a review of the evidence, the Board finds that service connection is not warranted for a low back disability. With regard to the first element of a service connection claim, the evidence shows that the Veteran has a current low back disability. The March 2011 and October 2017 VA examinations noted diagnoses of lumbar spine multilevel degenerative joint disease and degenerative disc disease. In addressing the second element, the Veteran contends that he experienced back injuries during active duty when he fell on multiple occasions as a radio operator. Despite the reported in-service injury, the service treatment records reflect no in-service disease. As set forth above, the Veteran's spine was examined and determined to be normal at separation, reflecting that a chronic disability had not developed as of that time. With respect to the third element, the nexus requirement, the Board finds that the probative evidence is against a finding that the Veteran's low back disability is causally related to active service. The Board assigns great probative weight to the February 2021 VA medical opinion, as the examiner reviewed the Veteran's claims file in its entirety. After considering the record, the examiner concluded that the Veteran's low back disability was not causally related to active duty. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran's low back disability was not causally related to service, explaining that the nature of the current pathology was consistent with aging and not an in-service injury. She considered the Veteran's reports of the in-service injury and symptoms but ultimately explained that the current pathology was inconsistent with an in-service incurrence, particularly in light of the lack of treatment in service. There is no medical opinion evidence to the contrary. The Board assigns less probative weight to the March 2011 VA examination which was found to be inadequate in the July 2017 Board remand to the extent the examiner based his opinion solely on the absence of treatment in service and failed to consider the Veteran's lay statements regarding his back injuries and subsequent pain during active duty. The Board also assigns less probative weight to the October 2017 VA examination, which was found to be inadequate in the April 2019 Board remand to the extent the examiner failed to address the Veteran's reports of in-service back injuries and ongoing symptoms since discharge. In addition, the Board assigns less probative weight to the November 2019 addendum opinion, as the examiner merely stated that he stood on his prior opinion and did not provide further rationale. The Board also assigns less probative weight to the Veteran's statements indicating that his low back disability was caused by active duty. Although the Veteran is competent to describe symptoms, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau, 492 F.3d at 1376-77. Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the February 2021 VA examiner, given her clinical expertise and the rationale she provided. In reaching this decision, the Board has considered the fact that the Veteran has been diagnosed as having degenerative disc and joint disease, an enumerated disease under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within the presumptive period, and was not noted in service with attributable continuity of symptomatology. As set forth above, the Veteran's service treatment records contain no indication of a low back disability. Notably, at his January 1971 separation examination, the Veteran's spine was examined and found to be normal. The post-service record on appeal shows that the Veteran was not diagnosed as having degenerative disc and joint disease for decades after his separation from active service and well outside the applicable presumptive period. While the record contains the Veteran's recollections that he developed back pain during active duty which continued to the present, and he is certainly competent to report having experienced such symptoms, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative disc or joint disease as the Veteran has not demonstrated the necessary medical expertise. Jandreau, 492 F.3d at 1377, 1377 n.4. Based on the foregoing, as the probative evidence is against the Veteran's claim of service connection for a low back disability, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran's claim for a low back disability is denied. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.