Citation Nr: 21029384 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-40 932 DATE: May 13, 2021 ORDER Service connection for sacroiliac osteoarthritis is denied. Service connection for degenerative disc disease of the cervical spine is denied. Service connection for headaches is denied. FINDINGS OF FACT 1. The Veteran's sacroiliac osteoarthritis did not have its onset in service, did not manifest within one year of service, was not caused by an in-service event, injury, disease, nor was it caused or aggravated by any service-connected disability. 2. The Veteran's degenerative disc disease of the cervical spine did not have its onset in service, did not manifest within one year of service, was not caused by an in-service event, injury, disease, nor was it caused or aggravated by any service-connected disability. 3. The Veteran's occipital neuralgia did not have its onset in service, did not manifest within one year of service, was not caused by an in-service event, injury, disease, nor was it caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for sacroiliac osteoarthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1970 and from April 1973 to February 1975, to include service in the Republic of Vietnam from March 1968 to October 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in March 2019. This case was previously remanded in a September 2019 Board decision for additional development. In the September 2019 Board decision, the claims to service connection for sacroiliac osteoarthritis, degenerative disc disease (DDD) of the cervical spine and headaches were reopened while a claim of service connection for a shoulder disorder was dismissed as the issue was withdrawn. The Board remanded the service connection claims for new VA examinations and medical opinions as to the etiologies of the claimed disabilities. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for sacroiliac osteoarthritis The Veteran asserts that he is entitled to service connection for his back disability. He contends that while serving in the Republic of Vietnam, when returning to base camp, he twisted his upper body when getting off the flight line and he could not move. He was carried to base field hospital and a doctor was flown in. No x-rays were available, but the Veteran was diagnosed with muscle spasm. Treatment for back pain after playing football in October 1969 is also noted in Veteran's service treatment records (STRs). He maintains that this disability is related to service and has been problem for him since that time. As the September 2019 Board decision noted, the Veteran's exit examinations from active duty and reserve duty are silent as to back disorders. In November 2009, the Veteran injured his shoulders while testing a dirt bike; he was told by doctors that his fall did not affect his back, but that the fracture in his back was from an old injury and Veteran only recalls hurting his back while he was in Vietnam. See March 2010 & September 2016 Statements in Support of Claim. Additionally, in August 2010, a medical examiner opined that the Veteran's back disability was less likely than not related to service as it was not a continuation of his reported back pain during service. The medical examiner noted that a physical examination in November 1997 revealed no back conditions or symptoms. The Veteran was treated for back pain on two occasions for a lumbar strain in 1969 and there was no further evidence of low back problems afterwards and his mild sacroiliac osteoarthritis is due to the normal aging process. See August 2010 Medical Treatment Records. A July 2014 private treatment note indicates that a physician tried to document that the Veteran's injury did occur during service and that his neck and back conditions are related to service. However, no rationale was provided for this opinion. The physician also submitted a sheet where he checked a box next to text stating "I have reviewed the veteran's service medical records and it is my opinion that condition is related to his/her military service." The condition listed was neck and back. The Veteran was afforded a post-remand VA examination in December 2019 for his back disability, in which his thoracic and sacroiliac osteoarthritis was reaffirmed. The medical history reiterated that he was told he had an old back fracture at T3 that did not heal right when he was seen for treatment following his dirt bike accident and he fractured both scapulae. The Veteran reported upper thoracic back pain and muscle spasms if he twists the wrong way. He denied pain at S1 and denied any radicular symptoms. Veteran currently pain medication as needed and took muscle relaxers in the past. See December 2019 VA Back Examination. The VA examiner noted that the Veteran injured his back while playing football and was seen on October 10, 1969 at the 10th AVN BN DISP APO per the STRs. The affected area was L1-L2 with paraspinous tenderness and muscle spasms. The Veteran's current osteoarthritis is of the sacroiliac region, not the lumbar region and specifically L1-L2. The lumbar spine was found to be normal on X-ray. Further, the examiner stated that the Veteran currently has no pain or other complaints of the sacroiliac region and his history of compression fractures are of the thoracic spine, not the lumbar spine. Therefore, the examiner held that the Veteran's medical records show that the back disability is less likely than not incurred in or caused by the specific in-service event or injury or onset within a year of service. While the Veteran asserts that his back disability had its onset in service, he has not shown that he has specialized training sufficient to render such an opinion. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in December 2019 is more probative than the Veteran's lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, the examiner's opinion warrants more weight. The August 2010 VA examiner also opined for a negative nexus opinion as to etiology of the Veteran's back disability. While the July 2014 private physician provided a positive nexus opinion as to the back disability, no adequate rationale was provided as to the back disability and its relation to Veteran's active duty service. In sum, the preponderance of the competent, credible, and probative evidence indicates that the Veteran's sacroiliac osteoarthritis disability is not related to service or caused or aggravated by a service-connected disability. The evidence of record does not show that the Veteran suffered a chronic back injury while in service or has had recurrent back problems since he separated from service in light of the contemporaneous medical evidence dated at the time of his separation from service. Accordingly, the claim for service connection for sacroiliac osteoarthritis is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence are against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Service connection for degenerative disc disease of the cervical spine The Veteran asserts that he is entitled to service connection for his neck disability. He contends that while serving in the Republic of Vietnam, when returning to base camp, he twisted his upper body when getting off the flight line and he could not move. He was carried to base field hospital and a doctor was flown in. No x-rays were available, but the Veteran was diagnosed with muscle spasm. He contends that he had several episodes of neck pain and headaches since his active duty incident. He maintains that this disability is related to service and has been problem for him since that time. As the September 2019 Board decision noted, the Veteran's exit examinations from active duty and reserve duty are silent as to any neck disabilities. Besides his back treatment note in October 1969, there are no other reports in Veteran's STRs for any complaints or treatment of a neck injury. In November 2009, the Veteran injured his shoulders while testing a dirt bike; he was told by doctors that his fall did not affect his back, but that the fracture in his back was from an old injury and Veteran only recalls hurting his back while he was in Vietnam. Veteran did not report any headaches or neck pain after the dirt bike incident. See March 2010 & September 2016 Statements in Support of Claim. In a September 2008 medical treatment note, a physician opined upon imaging that Veteran "spine reveals a T3 anterior wedging of approximately 50% with cobbling of about 25%." The doctors also held that "there is no acute fracture," and "this appears in our mind to be chronic." No further rationale was provided as to the chronicity of the cervical injury. Additionally, in August 2010, a medical examiner opined that the Veteran's neck disability was less likely than not related to service as there was no evidence of a cervical spine injury in the STRs and Veteran has no complaints of cervical spine pain or symptoms (including headaches) associated with such a condition in a November 1997 examination. See August 2010 Medical Treatment Records. A July 2014 private treatment note indicates that a physician tried to document that the Veteran's remote T3 compression fracture injury did occur during service and that his neck and back conditions are related to service. However, no rationale was provided for this opinion. The physician also submitted a sheet where he checked a box next to text stating "I have reviewed the veteran's service medical records and it is my opinion that condition is related to his/her military service." The condition listed was neck and back. The Veteran was afforded a post-remand VA examination in December 2019 for his neck disability, in which his DDD of the cervical spine was reaffirmed along with a cervicothoracic kyphosis diagnosis. The medical history reiterated that the onset of his neck disability was approximately 2008, while he continues to experience cervical muscle spasms and the spasms result in his headaches. He further stated that he has to apply pressure to the muscle spasm to prevent the onset of a headache. Veteran currently pain medication as needed and underwent two courses of Botox and used a TENS unit in the past. See December 2019 VA Neck Examination. The VA examiner opined that there is no evidence, per review of the medical records, of a neck injury/complaint during or shortly after service. The examiner held that Veteran himself reported that his neck condition is tied to his headaches (occipital neuralgia), which started approximately eleven years ago which would be 1998, or 28 years after service. Mild DDD was not seen on imaging until December 2019, or 49 years after service. Further, the examiner opined that if the DDD was tied to service, it would be expected to be at least moderate to severe in nature 49 years later. Therefore, the examiner held that the Veteran's medical records support that the DDD of the cervical spine is less likely than not incurred in or caused by the specific in-service event or injury or onset within a year of service. While the Veteran asserts that his neck disability had its onset in service, he has not shown that he has specialized training sufficient to render such an opinion. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in December 2019 is more probative than the Veteran's lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, the examiner's opinion warrants more weight. The August 2010 VA examiner also opined for a negative nexus opinion as to etiology of the Veteran's neck disability. While the July 2014 private physician provided a positive nexus opinion as to the back disability, no adequate rationale was provided as to the neck disability's relation to Veteran's active duty service. Furthermore, the physicians who opined that Veteran's cervical spine injury "appears ... to be chronic" did not provide an adequate rationale explaining their stance and left the nexus as etiology up to mere speculation. In sum, the preponderance of the competent, credible, and probative evidence indicates that the Veteran's cervical spine DDD disability is not related to service or caused or aggravated by a service-connected disability. The evidence of record does not show that the Veteran suffered a chronic neck injury while in service or has had recurrent neck problems since he separated from service. Accordingly, the claim for service connection for DDD of the cervical spine is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence are against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 3. Service connection for headaches The Veteran asserts that he is entitled to service connection for his headaches, including as secondary to his DDD of the cervical spine. He contends that while serving in the Republic of Vietnam, when returning to base camp, he twisted his upper body when getting off the flight line and he could not move. He was carried to base field hospital and a doctor was flown in. No x-rays were available, but the Veteran was diagnosed with muscle spasm. He contends that he had several episodes of neck pain and headaches since his active duty incident. As the September 2019 Board decision noted, the Veteran's exit examinations from active duty and reserve duty are silent as to any neck disabilities or any complaints or treatment for headaches. Besides his back treatment note in October 1969, there are no other reports in Veteran's STRs for any complaints or treatment of a neck injury or headaches. In November 2009, the Veteran injured his shoulders while testing a dirt bike; he was told by doctors that his fall did not affect his back, but that the fracture in his back was from an old injury and Veteran only recalls hurting his back while he was in Vietnam. Veteran did not report any headaches or neck pain after the dirt bike incident. See March 2010 and September 2016 Statements in Support of Claim. Additionally, in August 2010, a medical examiner opined that the Veteran's headaches were less likely than not secondarily related to his back disability; rather they are secondary to his cervical spine DDD, as evidence by the physical therapy records. However, as there was no evidence of a cervical spine injury in the STRs and Veteran has no complaints of cervical spine pain or symptoms (including headaches) associated with such a condition in a November 1997 examination, his headaches were not service related as the neck injury was not service-connected. See August 2010 Medical Treatment Records. The Veteran was afforded a post-remand VA examination in December 2019 for his headaches, in which he was diagnosed with occipital neuralgia. The medical history reiterated that the onset of his neck disability was approximately 2008, while he continues to experience headaches but not as frequently. The Veteran sought the help of a neurologist who diagnosed him with cluster headaches. His headaches started around his temple and went down around his mouth. He further stated that he has to apply pressure to his muscle spasms to prevent the onset of a headache. Veteran reported attending physical therapy and takes pain medication to relieve headaches. See December 2019 VA Headaches Examination. The VA examiner opined that, per review of the Veteran's medical records and considering his headache pattern demonstrated on the VA examination, his headaches are located in his neck and travel up to the right side of his temple. Occipital neuralgia can be caused by irritation of or pressure on the occipital nerves at C2-C3 by DDD, and the Veteran's cervical spine x-rays show mild DDD in the upper cervical spine. Therefore, the examiner held that the claimed headaches are a least as likely as not proximately due to or the result of the Veteran's cervical spine DDD. While the Veteran's occipital neuralgia is shown to be secondarily related to his DDD of the cervical spine, the evidence does not show that the DDD of the cervical spine is related to service. Therefore, service connection for headaches on a secondary basis to the Veteran's neck disability cannot be established. The evidence also does not show that Veteran's occipital neuralgia had its onset in service, nor was it aggravated by service or another service-connected condition. In sum, the preponderance of the competent, credible, and probative evidence indicates that the Veteran's occipital neuralgia is not related to service or caused or aggravated by a service-connected disability. The evidence of record does not show that the Veteran suffered a headaches condition or his diagnosed occipital neuralgia while in service or has had recurrent headache problems since he separated from service. Accordingly, the claim for service connection for headaches is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence are against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.