Citation Nr: 21030289 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-28 260 DATE: May 18, 2021 ORDER Entitlement to service connection for degenerative arthritis of the cervical spine is granted. Entitlement to service connection for thoracolumbar spine disability is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's degenerative arthritis of the cervical spine is etiologically related to an injury incurred during service. 2. The weight of the lay and medical evidence does not indicate that the Veteran's intermittent thoracolumbar symptoms are related to an injury incurred during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1962 to December 1964. These matters come before the Board of Veteran's Appeals (Board) from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, GA. In September 2019, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic record. These matters were remanded by the Board for additional evidentiary development in November 2019. Upon return of the claims, the Board observes that there has been substantial compliance with its remand directives and is prepared to proceed with further adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, including arthritis will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competent medical evidence is evidence provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises, authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is evidence provided by a person who has knowledge of facts or circumstances of matters that can be observed and described that do not require specialized medical or scientific education, training, or experience. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). After determining that the evidence is competent, the Board must then determine if the evidence is credible. Competency is distinguished from credibility as competency involves a determination whether evidence may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this effort, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 465. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. After determining the competency and credibility of evidence, the Board must then weigh its probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for degenerative arthritis of the cervical spine Entitlement to service connection for thoracolumbar spine disability The Veteran contends that his degenerative arthritis of the cervical spine and lumbosacral disabilities are causally related to his military service. The Veteran's claims for a spinal condition was received by the VA in December 2013. A May 2013 cervical spine x-ray and 2015 VA disability examination confirmed a current diagnosis of degenerative arthritis of the cervical spine which satisfies the first prong of a current disability required for service connection. The second prong of service connection, an in-service incurrence or injury is satisfied with the Veteran's service treatment records that show that he was treated in Germany for a back injury described as an 8-foot fall on October 31, 1963 in causing severe pain in the middle of his back and a follow-up visit on November 1, 1963. The Veteran was treated with narcotic pain medication and 3 days of bedrest. VA treatment records reflect a June 2013 physical therapy consultation in which the Veteran reported neck pain that started 46 years before while on active duty after a fall. Any activities with his hands over his head, such as painting, causes a shooting pain up to his head and upper trapezius muscles. X-rays showed degenerative changes at the C4-C5 and C5 to C-6 with loss of disk space and degenerative endplate change, and foraminal narrowing. Private treatment records from an April 2014 routine visit note that the Veteran complained of discomfort in his abdomen when he lifts something heavy that he thought might be a hernia. In a March 2015 visit to a private physician he complained of mid back pain that started before a recent fall on the ice. In May 2015 the Veteran was provided a VA spinal conditions disability examination in support of his claim for neck pain. The Veteran denied having a back condition and declined a back examination. The Veteran gave a history of a fall from a tank and landing on the ground initially on his feet and then falling backwards to the ground hitting his head. He was able to finish the day out and was treated with pain meds and confinement to quarters for 3 days. Following separation from service he then worked as a mechanic and did not seek care until he started to have increased neck pain approximately 30 yrs ago. The Veteran recalled that computerized tomography (CT) scan of his neck revealed that he had a bone chip in the top two vertebrae at that time. The Veteran interrupted a trial of physical therapy prescribed by a VA physician in 2013 as his pain worsened. The examiner found that the Veteran's cervical spine degenerative disk disease was less likely than not related to a service injury in 1963 and more likely than not related to age and occupation. In February 2016, the Veteran provided testimony before a decision review officer at the RO. He described his service injury as falling from the top of a tank while putting on a camouflage net, hitting his back and his neck. He was discouraged from seeking further treatment for neck pain while in the Army. He has not had any car accidents, slip and falls, falls off ladder or any intervening injury since then. He noted that his back was fine however, he did have some back symptoms but thought they could be due to aging. The Veteran believed that he did not have arthritis of the neck because he could move his neck, but had been told that there was a bone chip that bothers him when he moves his neck up and down or when he carries something heavy. He further indicated that he has experienced neck pain since his service injury, however, he was not aware that he was eligible for Veteran's benefits, medical services or disability compensation until approximately 2013. After his initial VA provider prescribed physical therapy, the Veteran observed that his cervical spine pain worsened, he was not inclined to return for additional care. He commented that the 2015 VA examiner seemed to misunderstand his neck injury as she interpreted it as difficulty turning his neck from side to side, when he felt the difficulty was moving his neck up and down. During his Board hearing in November 2019, the Veteran recounted the circumstances of his initial injury in service which involved an 8-foot fall from a tank and the associated injuries. He noted that he has experienced neck pain since service while working as an auto mechanic. Private treatment records for a two-month follow-up on the 74-year old Veteran in February 2019 indicate that he was shoveling snow and splitting wood without chest pain. In a March 2019 Medicare annual wellness visit, the Veteran did not present any musculoskeletal complaints. In an October 2019 annual physical, the musculoskeletal exam was positive for nonspecific arthralgias and myalgias. In November 2019 VA visit for a physical examination, neck pain was mentioned by the Veteran. His musculoskeletal examination including the spine was "essentially unremarkable." In February 2020 the Veteran underwent a cervical spine disability examination degenerative arthritis of the cervical spine. He reported chronic pain at rest and flares of pain with reaching, lifting, and carrying items over 20 pounds, with prolonged sitting or driving the pain radiates into his upper extremities and causes weakness, fatigue, and lack of endurance in the neck. The Veteran had 30 degrees of forward flexion, 20 degrees of extension 25 degrees of lateral flexion right and left, and 50 degrees of lateral rotation right and left which did not worsen with repeat use over time or with flare-ups. He had normal reflexes, decreased sensation in his right and left hands with mild paresthesias and numbness. The Veteran had intervertebral disk syndrome, without fracture and without ankylosis. The examiner concluded that the Veteran's cervical degenerative arthritis is at least as likely related to service, most likely related to striking his neck which lead to traumatic degenerative arthritis in neck. In February 2021 the examiner found degenerative arthritis of the cervical spine. The Veteran noted that after his fall from the tank he fell backward onto a bulldozer blade hitting the back of his head and his lower back. He felt dizzy and disoriented. After separation from service his work as an automotive mechanic was performed at shoulder level, never overhead. The Veteran stated that when he raises hie left arm above shoulder height he feels paresthesias in his left posterior spine. Due to decreased left neck rotation he has to be more cautious when driving. Upon examination, the Veteran's had 40 degrees of forward flexion, 20 degrees of extension, 15 degrees of lateral flexion on both the right and the left, and 50 degrees of left lateral rotation and 55 degrees or right lateral rotation. Range of motion was not decreased with repeat use over time and flare-ups were denied. He had a normal sensory examination with no radicular symptoms, intervertebral disk syndrome, or ankylosis. The examiner concluded that the Veteran's degenerative arthritis of the cervical spine was less likely than not incurred in or caused by the claimed in service injury. As rationale the examiner noted that while the Veteran is consistent with his history regarding his in-service injury, the record is silent for back issues post service. The x-ray showing degenerative changes over 40 years later does not establish a plausible connection when there are other factors that could have contributed to the arthritis, including advancing age. The Board observes that the Veteran has made numerous statements disassociating any current back symptoms to the injury in service and declined to undergo a back-disability examination. Private and VA treatment records do not note back pain other than associated with a recent fall. The Veteran engages in activities such as shoveling snow and splitting wood without back pain. Therefore, the first required element for service connection, a current disability, has not been satisfied for thoracolumbar spine disability. A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). In this case, the Board has considered the Veteran's consistent and credible lay statements and finds that there is evidence of continuity of symptomatology for his cervical spine degenerative arthritis since service. Notably, the Veteran has denied ongoing back symptoms related to his service injury while consistently describing ongoing neck symptoms related to the injury. See 38 C.F.R. § 3.307 (a)(3); 38 C.F.R. § § 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Other statements provided by the Veteran corroborate the reason for a gap in medical treatment for his cervical spine for many years since service. The 2015 and 2021 VA examiners did not appear to elicit a full history of his neck pain since service and relied on the absence of documentation of treatment of the cervical spine to find that there is not a nexus between the Veteran's degenerative arthritis and service. However, as noted above, the Court has found that a medical opinion based upon lay statements indicating continuity of symptoms is competent medical evidence to support a claim. Upon review of all evidence of record, lay and medical, the Board finds that the preponderance of the lay and medical evidence weighs against service connection for a thoracolumbar spine disability and the claim must be denied. The evidence is at least in equipoise as to whether there is a connection between the Veteran's cervical spine degenerative arthritis and service injury. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.