Citation Nr: 21029355 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-30 967 DATE: May 13, 2021 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for bilateral lower extremity radiculopathy, to include as due to service-connected disease or injury is denied. FINDINGS OF FACT 1. The weight of the competent and credible evidence is against finding that the Veteran's cervical spondylosis and arthritis manifested in service or within one year of separation, continuity of symptomology is not established; and his neck disabilities are not attributable to service. 2. The weight of the competent and credible evidence is against finding that the Veteran's degenerative arthritis of the spine, spinal stenosis, and lumbar spondylosis manifested in service or within one year of separation, continuity of symptomology is not established; and his low back disabilities are not attributable to service. 3. The preponderance of the evidence is against finding that the Veteran's bilateral lower extremity radiculopathy is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309 (2019). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309 (2019). 3. The criteria for service connection for bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from June 1967 to November 1969. The Veteran was awarded the Distinguished Flying Cross and Purple Heart Medal due to his participation in combat and due to sustaining a combat wound while serving as a helicopter pilot in the Republic of Vietnam. Subsequently, the Veteran also served as a helicopter pilot and instructor in the U.S. Army Reserve from 1969 to 1992, with various confirmed periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board videoconference hearing before a Veterans Law Judge in his July 2016 VA Form 9. However, he cancelled that request in a July 2019 statement. Therefore, the Board hearing request is considered withdrawn. See 38C.F.R. §20.704(e) (2019). The Board notes that in March 2021, the Veteran's representative submitted a notice withdrawing as power of attorney on behalf of the Veteran. However, after the AOJ has certified an appeal to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion. See 38 C.F.R. § 20.6 (formerly § 20.608). The representative cited the cause as the Veteran' relocation to a new residence outside the representative's jurisdiction. As representation can be provided by correspondence by mail and electronic media (including virtual hearings if requested), physical location is not a showing of good cause. The representative's request to withdraw is denied. Service Connection A veteran is entitled to VA disability compensation if there is a 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, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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). 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101(21) and (24) (2012); 38 C.F.R. § 3.6(a) (2019). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131 (2012). ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). The presumption pertaining to chronic diseases under 38 U.S.C. § 1112 and the presumption of aggravation under 38 U.S.C. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id; see also Acciola v. Peake, 22 Vet. App. 320 (2008). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is 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 will be service-connected. 38 C.F.R. § 3.310(b). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a neck disability 2. Entitlement to service connection for a back disability The Veteran contends that he is entitled to service connection for a back and neck disability. He contends that his disabilities were either caused by a hard helicopter landing in 1968 during active duty, or from over 4,000 flying hours he amassed during his years of Reserve duty. The Veteran's active duty service treatment records (STRs) are associated with the claims file. The Veteran was in motor vehicle accident in November 1968. He reported pain in his chest and lumbar spine. Examination following the accident revealed no abnormalities. During an examination in December 1968, the Veteran's spine was determined to be normal. At his October 1969 separation examination, the Veteran's spine was determined to be normal. On the corresponding Report of Medical History form, the Veteran explicitly denied ever having recurrent back pain, painful joints, or arthritis. The Veteran's Reserve treatment records are also associated with the claims file. The Veteran had examinations in September 1979, September 1980, September 1981, August 1982, August 1984, August 1985, August 1987, September 1988, and July 1990. The Veteran's spine and neck were determined to be normal at each examination and no issues were noted. The Veteran also self-completed several Report of Medical History forms, and explicitly denied ever experiencing recurrent back pain, painful joints, neuritis, or arthritis in December 1973, January 1979, September 1980, September 1981, August 1982, August 1983, August 1984, August 1985, August 1987, and July 1990. The claims file does not reflect treatment or diagnosis for a back disability until April 2011, when the Veteran was diagnosed with degenerative changes and disc space narrowing in the lumbar spine by a private physician. Private treatment records reveal that the Veteran was diagnosed with mild cervical spondylosis in May 2011. July 2012 private treatment records reflect that the Veteran sought treatment for back pain after he had a severe bout of lower back pain two months prior while running. During September 2015 VA treatment, the Veteran stated that he had chronic neck and back pain for years and that he believed it began when he had a hard landing during active duty while working as a helicopter pilot. The Veteran attended a VA examination in January 2016. He told the examiner that he experienced a hard helicopter landing in 1969 while serving as a flight instructor in Alabama and developed low back spasms in 1972 and his symptoms continued from that point forward. Following an examination and review of the claims file, the examiner determined that the Veteran's back disabilities were less likely than not caused by his service because nearly 47 years passed between the Veteran's active duty service and when he first sought medical attention for his back. In March 2016 correspondence, the Veteran stated that he had experienced neck pain and decreased neck mobility, as well as back pain for years. In April 2016 correspondence, the Veteran submitted articles regarding the relationship between neck pain and Air Force pilots, as well as an article entitled, "A Pain in the Neck," which reported that military pilots were at an increased risk for neck pain because of the required misaligned posture, use of equipment on helmets and exposure to high G-forces. A VA opinion was obtained in February 2020. The examiner reviewed the claims file, to include the articles submitted by the Veteran in April 2016. In regard to the Veteran's back disabilities, the examiner determined that it was less likely than not related to his service, to include the reported hard landing in 1968 or the many hours flying. He explained that the Veteran explicitly denied ever experiencing any recurrent back pain at least ten times following his release from active duty. Back pain is not reported until 2011, or 43 years following active duty and nearly 20 years following his discharge from the Reserves. The examiner explained that with age, the spine begins to show signs of wear and tear as the discs dry out and shrink. The age-related changes can lead to arthritis, disc herniation, or spinal stenosis. In regard to the Veteran's neck, the examiner specifically addressed the April 2016 articles. He explained that the literature supported neck pain developing within a year of flying. On the contrary, the Veteran's claims file did not reveal any complaints of neck pain until 2011, or nearly 20 years following his separation from Reserve service. The examiner again stated that the Veteran's neck disabilities were likely age-related for the reasons stated above. The Veteran attended a VA examination in March 2020. He reported back spasms and radiating pain beginning in January 2010. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for a back or neck disability is warranted. The Veteran's neck and back disabilities were not incurred in or caused by an in-service injury, event or illness, to include the 1968 hard landing. Furthermore, the probative evidence does not reflect that the Veteran's service as a pilot in the Reserve caused any back or neck disabilities. The Veteran's lay statements regarding his current symptoms, in-service injury and ongoing symptomology are credible. While the Veteran reports that his neck and back disabilities were caused by a 1968 incident or the conditions he endured as pilot, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability and to provide an opinion on aggravation and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. In particular the Board finds that the VA opinion of February 2020 is entitled to significant probative weight. The February 2020 VA examiner listed the relevant evidence, including the Veteran's contentions and the April 2016 articles. He summarized the articles and explained why it was not applicable to the Veteran. He also determined that age was more likely a factor in the Veteran's back and neck disabilities. The Board also finds it highly probative that the Veteran repeatedly denied any back or joint problems throughout his time in the Reserve. There is no lay or medical evidence reflecting any recurrent back or neck pain prior to 2010. The Board assigns low credible weight to the report of continued back and neck pain since the hard landing on active duty because the Veteran denied these symptoms repeatedly on multiple flight and regular physical examinations. The Board has considered the Veteran's lay statements however, the Board gives more probative weight to the competent medical evidence especially the February 2020 VA opinion. As such the Board finds that the Veteran's back and neck disabilities are less likely than not related to service, and service connection is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a back or neck disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 3. Entitlement to service connection for bilateral lower extremity radiculopathy, to include as due to service-connected disease or injury Mild bilateral lower extremity radiculopathy was noted in the January 2016 VA examination. The Veteran asserts that he is entitled to service connection for bilateral lower extremity radiculopathy. STRs are associated with the claims file and there is no indication that the Veteran received any treatment for or had any reports of radiculopathy. At his October 1969 separation examination, the Veteran's neurological system and lower extremities were determined to be normal. On the corresponding Report of Medical History form, the Veteran explicitly denied ever having neuritis, foot trouble, or leg cramping. There is no indication that the Veteran received treatment for radiculopathy while he was in the Reserves. His neurological system and lower extremities were determined to be normal in September 1979, September 1980, September 1981, August 1982, August 1984, August 1985, August 1987, September 1988, and July 1990 examinations. The Veteran also self-completed several Report of Medical History forms, and explicitly denied ever experiencing neuritis, foot trouble, or leg cramping in December 1973, January 1979, September 1980, September 1981, August 1982, August 1983, August 1984, August 1985, August 1987, and July 1990. The claims file does not reflect treatment or complaints of radiculopathy until April 2011, when the Veteran was diagnosed with left-sided radiculopathy by a private physician. As stated above, the Veteran reported back spasms and radiating pain beginning in January 2010 during a VA examination in March 2020. The record does not support that the Veteran is entitled to service connection for bilateral lower extremity radiculopathy on a direct basis. There is nothing in the Veterans STRs or Reserve records which reveal that the Veteran had radiculopathy. The Veteran has not provided any lay statements regarding in-service symptoms. The Board concludes that service connection is not warranted as the Veteran's lower extremity radiculopathy did not begin during service and is not attributable to service. As to secondary service connection, the Veteran appears to contend that his lower extremity radiculopathy is due to his low back disability, and treatment records have also alluded to this. However, as noted above, the Veteran is not currently service connected for a low back disability, and herein, entitlement to service connection for a low back disability has been denied. As such, entitlement to service connection for lower extremity radiculopathy on a secondary basis, due to a low back disability is not for consideration. (continued next page) In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral lower extremity radiculopathy. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.