Citation Nr: 21030713 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-38 009 DATE: May 19, 2021 ORDER Entitlement for service connection for a cervical condition is denied. Entitlement for service connection for a lower back condition is denied. FINDINGS OF FACT 1. A cervical condition did not manifest in service and is not otherwise related to the Veteran's period of active duty. 2. A lower back condition did not manifest in service and is not otherwise related to the Veteran's period of active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lower back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the Navy from September 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 and November 2018 rating decisions of a Department of Veterans' Affairs Regional Office (RO). VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.156(a), 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that the March 2021 letter sent to the Veteran satisfies the duty to notify. The VCAA also requires the VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2018, the Board remanded the case with directives to obtain additional VA Medical Clinic (VAMC) records from NY Harbor and VA Caribbean Healthcare System and schedule a VA examination to determine the nature and etiology of any diagnosed cervical and/or lower back disability and render an opinion if his current back and neck conditions are related to an in-service injury, event, or disease. In the June 2018 remand directives, the Board also asked that the Veteran be scheduled for a Decision Review Officer (DRO) hearing at the RO (an in-person hearing). The DRO contacted the Veteran who agreed to an informal telephone conference in May 2020 instead of an in-person formal hearing at the RO. The informal telephone conference was held, a DRO Conference Report was issued, and a letter summary provided to the Veteran. The January 2021 VA examination report, Veteran's service treatment records, VA treatment records, the DRO conference report, and lay statements have all been associated with the record. In addition, treatment records from the VAMC in San Juan, PR have been received and associated with this file. Treatment records from the VA New York Harbor Health Care System were requested but that facility responded that those records could not be located. In the January 2021 VA examination report, the examiner stated that the Veteran's current neck and spine conditions are less likely than not related to an in-service injury or event. The Board finds that this opinion was adequate in responding to the June 2018 remand because the examiner reviewed the evidence of record, including Veteran's statements, and provided a well-reasoned medical explanation for her opinion, including addressing the question of a nexus between the Veteran's current spine condition and an alleged physical assault injury to his spine while in service. Accordingly, the Board finds that the RO has substantially complied with the Board's June 2018 remand instructions. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection for cervical and lower back conditions. The Veteran seeks service connection for cervical and lower back conditions. In his Notice of Disagreement, dated April 2015, and April 2018 Statement in Support of Claim, the Veteran states that that he sustained a back injury when a petty officer attacked him, dragging him off a work truck, and that this caused him to suffer contusions and spine injuries (which he characterized as bone spurs). 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). The question before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The January 2021 VA examiner diagnosed degenerative arthritis of the lumbar spine. Under 38 C.F.R. § 3.309(a), if a Veteran has arthritis, the nexus requirement can be satisfied if it manifested itself to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. In this case, the Board finds that presumptive service connection for the Veteran's low back arthritis is not warranted because there is no evidence that it manifested within one year of his separation in 1975. A June 2002 VA x-ray of the lumbosacral spine was normal, which is affirmative evidence that there was no arthritis of the lumbosacral spine within one year of separation from service in 1975. No complaints of neck or lower back pain, abnormal neck or lower back conditions, or injuries or treatments are noted in the Veteran's military service medical records, including his enlistment and separation medical evaluations, dated September 1974 and July 1975. His examination clinical evaluations, including his Report of Medical History, are rated as "normal" and his health is listed as "good." The Board finds that the contemporaneous service medical records are more probative than statements the Veteran makes in association with a claim decades after service and which relies upon memory. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). The January 2021 VA examiner diagnosed the Veteran with degenerative disc disease, degenerative arthritis, and scoliosis of the lumbar spine. Also noted was a September 2018 x-ray report which revealed mild degenerative spine changes and minimal disc space narrowing at levels L5-S1. The examiner diagnosed degenerative disc disease of the cervical spine. Regarding the cervical spine, the VA examiner stated there was no evidence in the file records of any injury either in the service or afterwards which contributed to the Veteran's degenerative disc disease. She noted that degenerative disc disease is present in 75 percent of people under age 50 and in over 90 percent of people over age 50. She opined that it is more likely than not that the degenerative disc disease of the cervical spine is reflective of normal age-related changes. Regarding the lumbar spine, the VA examiner also stated that there was no evidence in the file records of injury either in the service or afterwards that would cause the veteran's current complaints of lower back pain. She noted that the only positive findings on physical examination were the Veteran's subjective pain with range of motion and mild tenderness to palpation but also stated that chronic tenderness to palpation over spinous process is not expected 45 years after the kind of physical injury described by the Veteran. She stated that tenderness to palpation is more likely than not related to exaggerated lumbar lordosis which can cause inflammation in the ligaments between spinous processes but that exaggerated lumbar lordosis was not prominent on his physical examination of the Veteran. After the Veteran's discharge from service, the earliest VA medical treatment records in file which note neck or lower back conditions are dated April 1997, which shows diagnoses of mild cervical degenerative disc disease at levels C5-6 without nerve root compression, and June 2001, which shows lumbar lordosis. VAMC treatment records from May 2002 and September 2010 confirm the same diagnoses: degenerative disc disease with cord narrowing at level C4-5 with spondylosis and stenosis. Records from June 2002 show unremarkable lumbosacral spine. September 2010 VAMC treatment records note an automobile accident. In September 2011, he had adequate spine alignment, normal neurological examination, and no tenderness to palpitation. In August 2018, he had a negative straight leg raising test, and no radiculopathy or neurological symptoms suggestive of lower spine injury or nerve damage. August 2018 VAMC treatment records note observations of the Veteran's right ankle weakness and gait problems. However, these symptoms are attributed to an old cerebral vascular accident and bilateral hip replacements rather than old spine injuries, structural or neurological abnormalities. A July 2019 record confirms arthropathy and mild compression fracture at level C-5. The VA treatment records do not address whether the Veteran's cervical and lumbar disabilities are due to service. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the January 2021 VA examination and opinion is based on a review of the Veteran's file, his statements, and medical treatment records, and is accompanied by a sufficient explanation as to why the Veteran's neck and back pain symptoms are not related to service. The Board thus places great probative weight on that examination and opinions. The Veteran states that his neck and back pain is due to, or caused by, a physical assault while in service. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367. The Veteran's claims of neck and lower back spine injuries sustained while in service are inconsistent with the objective medical evidence in the file and his service treatment records which, the 2021 VA clinician notes, do not reflect the kinds of severe, acute trauma that would be expected to result in the current neck and lower back spine conditions of the Veteran. In addition, the Veteran is not credible regarding the circumstances of his injury, or whether it occurred. In his NOD and April 2018 statement in support of his claim, he asserted that he was "in the brig." In April 2018, he stated that the petty officer who attacked him was an inmate. In his Form 9, he stated that he was on "work detail" when he was attacked by an inmate. He stated that "[s]ince [he] was a prisoner" his medical treatment was "substandard." At his January 2021 VA neck examination, the examiner noted, "Veteran reports was working in the brig as an officer, and was attacked by an inmate and pulled off truck striking his neck and low back." Similarly at his back examination, the examiner noted, "Veteran states that he was working as a brig officer, and was attacked by inmate (states that he was set up by other soldiers for the attack) and pulled off truck striking his neck and low back." However, his service personnel records clearly show that the Veteran was incarcerated in the brig, not working there as a brig officer. In his Form 9, the Veteran also stated that he had been a prisoner. The VA examiner also noted this inconsistency, and stated that, "[t]he event as described by the veteran had many factual errors, including that he described himself as an officer in the brig, when he was never in that occupation, but was in fact incarcerated in the brig." The Veteran's statements regarding whether he was injured in service are not credible because they are inconsistent. In his lay statements he admitted that he had been incarcerated, and this is confirmed by the personnel records. However, at his VA examination he told the examiner that he had been working in the brig as an officer and was not truthful about his reason for being in the brig. Because the Veteran's description of an in-service injury is not credible, it is not probative evidence. In addition, the Veteran told the examiner that "...his original service records and files regarding this assault burned in a fire and that's why they are no longer available." When service treatment records are lost destroyed, VA is usually informed of this when they make the records request. There is no documentation in the claims file that part of his records were destroyed. Additionally, there is no evidence in the claims file that the service treatment and personnel records obtained by VA are incomplete. Therefore, the Board finds the Veteran's statement that documentation of his alleged assault was destroyed to be not credible. This further undermines his credibility with respect to his assertion of an in-service assault. For these reasons, his assertion that he sustained an injury to his neck and back in service is not credible. Even if the Board were to assume that his statements were credible, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of orthopedic spine and neurological systems and the ability to interpret diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board would give more probative weight to the 2021 VA examination report. For the reasons stated above, the Board finds the preponderance of the evidence in this file is against the Veteran's claim for service connection for cervical and lumbar conditions. There is no reasonable doubt to be resolved, and the claim for service connection is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.