Citation Nr: 21029752 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-40 640 DATE: May 14, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for loss of function of the left leg, claimed as left foot drop, including as secondary to a back disability, is denied. FINDINGS OF FACT 1. The Veteran's back disability is not related to his military service and was not manifested within the one year following separation from service. 2. The Veteran's neck disability is not related to his military service and was not manifested within the one year following separation from service. 3. The Veteran's loss of function of the left leg is not related to his military service and is not due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The Veteran's back disability was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The Veteran's neck disability was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The Veteran's loss of function of the left leg was not incurred in or aggravated by active military service, and is not secondary to a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1976 to January 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran was afforded a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder. In December 2019, the Board denied the Veteran's claims. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court) which in a November 2020 Order and pursuant to a Joint Motion for Remand (JMR), vacated the December 2019 decision and remanded the case to the Board. Service Connection In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection is available for chronic diseases which manifest to a degree of 10 percent or more within 1 year of the date of separation. 38 U.S.C. § 1112 (a)(1). Arthritis or degenerative disc disease is listed as a chronic disease. Entitlement to service connection for a neck and back disability The Veteran contends that he is entitled to service connection for a back and neck disability because he injured them following an accident where the lid of an armored personnel carrier (APC) came down on his head and compressed his neck and back. See November 2012 Veteran's statement. For the reasons explained below, the Board finds that service connection is not warranted for a back or neck disability. Service treatment records indicate that in August 1977, the Veteran hit his head when his APC flipped over on post. The Veteran sustained loss of consciousness for an unknown length of time and it was noted that there were no other injuries. He was observed and then released with instructions to stay in quarters until the following day. His October 1978 separation examination was silent for any back or neck complaints or disabilities. On his October 1978 Report of Medical History, the Veteran denied any symptoms of recurrent back or neck pain. Gulf Coast Urgent Care records, dating from 2006, indicate that the Veteran was diagnosed with sciatica and left paraspinal muscle tenderness in the lumbar area. Private treatment records from Dr. R.B. at the Kennedy-White Orthopaedic Center indicate that the Veteran was diagnosed with left L4-L5 disc herniation. A September 2007 MRI of the lumbar spine revealed moderate degenerative disc disease at L4-L5 and L5-S1. Private treatment records from Dr. E.M. indicate that, starting in 2011, he treated the Veteran for chronic back pain. No etiological opinion was provided. An August 2012 neuropsychological report indicated that the Veteran reported being involved in a crash during service where he was hit on the head from a heavy metal door. He claimed that the door pushed down on his spine. Lay statements from the Veteran's wife and fellow soldiers confirm that the Veteran was involved in an accident while stationed at Fort Hood. His wife stated that when the Veteran woke up in the hospital, "he had suffered head, neck and back injuries." "After he was discharged from the hospital he suffered from extreme headaches, neck pain and backache." See August 2013 lay statement. His fellow soldiers stated that they visited him in the barracks after he returned from the hospital following the accident. See August 2014 VA 21-4138s. In a July 2015 statement, Dr. P.F. opined that the Veteran's back, head and neck injury, PTSD and drop left foot were caused by or were a result of heavy vehicle accident U.S. Army. "His injuries and PTSD are consistent with what happened in the preparation for War exercises in an armored personnel carrier [with] lid hitting him on the head causing hospitalization." He indicated that he had reviewed the Veteran's treatment records since service separation but did not review service treatment records. The Veteran testified at the April 2017 Board hearing that post service, he worked in an electronic factory. See Board Hearing Transcript, p.19. He denied that his work involved physical activity. "No, I tested the breakers, place it down, put the cable, connect, check everything okay." Id. at 20. Social Security Administration (SSA) disability records include the Veteran's reported history at his previous places of employment. He reported that while working as a packer and for lift driver from in July 2008, he "lifted boxes of product of more than 20 [pounds] sometimes as far as 15 feet." He reported that the heaviest weight he lifted at that job was about 30-40 pounds. In his job as a final lap termination technician from 2005 to 2008, he reported that he "lifted and pulled heavy doors onto cart and when cart was full it was taken to warehouse . . . when doors had damage, another employee helped me to push the door about 40 [feet] to repair area. These doors weighed about 150 [pounds] to 200 [pounds] and we pushed them on the floor without cart." In his position as a molding machine operator from 2003 to 2005, he reported that he carried a box of product to another machine about 20 to 40 feet from his work area. He reported that he frequently lifted 20-pound boxes. In his longest held job as an industrial electrical breaker tester, he reported that he "only pulled the breakers and pushed to the conveyor." He denied lifting or carrying in this capacity. In the section authored by the SSA medical consultant, Dr. N.C. noted that "medical evidence supports [claimant] sought medical assistance around [August 2010] for history of back pain that increasingly worsened. The claimant related it to his job using fork lift pushing and loading boxes." The Veteran was afforded a VA examination in August 2013. However, at that time, the Veteran's service treatment records were unavailable. They were associated with the Veteran's electronic claims folder in 2015. In August 2018, the Board remanded the matter to obtain an addendum medical opinion which considered the newly obtain service treatment records. In an April 2019 medical opinion, the clinician stated that it was less likely than not that the Veteran's claimed back and neck disabilities were related to service. The clinician provided the following rationale: Review of service medical record shows no documentation of a back [or neck] condition . . . Review of medical record shows that the Veteran hit his head in a motor vehicle accident on 8/29/1977. There is no documentation of a back [or neck] injury at that time. Review of Veteran's separation physical dated 10/2/1978 noted that the Veteran stated that he is in good health and stated "no" to back and neck pain. His clinical examination noted a normal spine examination and he was not provided with a diagnosis of a back condition at his separation physical. There are no medical records in the years following his active military service, to establish the chronicity of his claimed back condition. Review of post service medical record first noted complaints related to his back in 2006 which is over 29 years after his active military service. The examiner also questioned the Veteran's Board testimony where he denied working in a physically laborious field post service because SSA records reflected that he had at least 2 physically laborious positions. The clinician addressed the Veteran's testimony that one of his doctors told him that his head injury is what caused the lumbar spine disability due to compression of the cervical spine. The clinician opined that there is no medical literature that supports that conclusion. The Board finds the April 2019 VA clinician's opinion probative. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The clinician opined against a nexus between the Veteran's back and neck disabilities and service. The clinician addressed all potentially favorable evidence, including Dr. P.F.'s nexus statement and the Veteran's claims of continuity of symptoms. In determining whether such expert evidence is adequate, the report must be read as a whole. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (holding that an examination is not necessarily inadequate where "the rationale provided by the examiner [does] not explicitly lay out the examiner's journey from the facts to the conclusion, so long as that rationale can be discerned from a review of the report as a whole"). Ultimately, the clinician found that the Veteran's back and neck disabilities were more likely "related to his years of wear and tear that occurred during his severe heavy lifting on his post service jobs described in social security medical records." The examiner's report referenced several pertinent parts of the Veteran's electronic claims folder, including his Board testimony. The Board finds that the examiner's opinion adequately considered the Veteran's lay statements. The examiner's opinion was based upon several factors, including the strenuous nature of his post-service employment and not just the absence of post-service records. It is clear that the Veteran believes that a nexus exists. Such a lay belief sometimes is sufficient. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). It indeed is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service. See Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the causal relationship between the Veteran's claimed back and neck disabilities and service is a complex medical issue for which the Veteran is not qualified to offer an opinion. Thus, while the Board has considered the Veteran's statements, it finds the VA examination opinion to outweigh them. Although the Veteran's wife stated that the Veteran injured his head, back and neck following the in-service accident, the objective service treatment records do not support this conclusion. She did not personally witness the Veteran's injuries because she was in Puerto Rico and he was in Texas at the time. The service treatment records document the Veteran's head injury, but no other injuries. Therefore, the Board assigns probative value to the Veteran's wife's statements regarding the head injury, but not regarding the back and neck injuries. The Board also does not assign any probative value to Dr. P.F.'s July 2015 statement as it was not based on a review of the Veteran's service treatment records and was not supported by adequate rationale. The Board further finds that presumptive service connection is not warranted because the evidence does not show that he has a diagnosis of arthritis becoming manifest to a degree of 10 percent of more within one year from the date of separation. The Veteran was not diagnosed with degenerative disc disease for many years post service. Regarding continuity of symptomatology, the Veteran denied any back or neck pain and no back or neck disability was noted on his separation examination. Although the Veteran stated that he sought treatment within the year after service, see Board Hearing Transcript, pp. 7-8, there are no records to support his assertion. Although the absence of contemporaneous records is not fatal to a claim, the Board finds that the evidence that the Veteran's back pain began around 2005 probative to the issue of the initial manifestation of back pain. See Social Security Administration disability records. The November 2020 JMR attached significance to the fact that the Board did not specifically address the Veteran's explanation for why there were no records of his treatment within a year of service separation. The Veteran said he was unable to obtain the records because the doctor's office closed. As noted above, the absence of contemporaneous records is not fatal to the claim. Instead, the Board finds the VA examiner's explanation of the etiology of the Veteran's neck and back disabilities more probative. The examiner found that the Veteran's current neck and back problems were more likely than not related to his post-service employment. Further, even assuming arguendo that the Veteran sought treatment for his back at some point post-service, one cannot ignore the intervening evidence of the Veteran's physically laborious employment to which the VA examiner has etiologically related the current neck and back problems and which would contradict any evidence of continuity of symptomatology. Accordingly, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Entitlement to service connection for loss of function of the left leg, claimed as left foot drop, including as secondary to a back disability. The Veteran does not contend and the evidence does not suggest that his loss of function of the left leg arose in or is related to service. Thus, service connection on a direct basis is not warranted. Rather, the Veteran contends that service connection is warranted as secondary to his back disability. However, as discussed above, the Board has found herein that the Veteran is not entitled to service connection for a back disability. The April 2019 VA examiner opined that the Veteran's left leg foot drop was secondary to his back disability. As there is no service-connected disability (back or neck) to form the basis for secondary service connection for loss of function of the left leg, service connection is not warranted on a secondary basis. (Continued on next page.) The preponderance of the evidence is against the Veteran's claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Baskerville, LaRita 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.