Citation Nr: 21031433 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-29 505 DATE: May 21, 2021 ORDER Entitlement to service connection for a back disability, to include degenerative disc and joint disease, is denied. Entitlement to service connection for a neck disability, to include degenerative disc and joint disease, is denied. Entitlement to service connection for a left hip disability, to include total hip arthroplasty, status post avascular necrosis, is denied. Entitlement to service connection for a right hip disability, to include total hip arthroplasty, status post avascular necrosis, is denied. FINDINGS OF FACT 1. The Veteran's back disability, to include degenerative disc and joint disease, was not incurred in service and did not manifest to a compensable degree within the applicable presumptive period. 2. The Veteran's neck disability, to include degenerative disc and joint disease, was not incurred in service and did not manifest to a compensable degree within the applicable presumptive period. 3. The Veteran's left hip disability, to include total hip arthroplasty, status post avascular necrosis, was not incurred in service and did not manifest to a compensable degree within the applicable presumptive period. 4. The Veteran's right hip, to include total hip arthroplasty, status post avascular necrosis, was not incurred in service and did not manifest to a compensable degree within the applicable presumptive period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability, to include degenerative disc and joint disease, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for a neck disability, to include degenerative disc and joint disease, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for entitlement to service connection for a left hip disability, to include total hip arthroplasty, status post avascular necrosis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. The criteria for entitlement to service connection for a right hip disability, to include total hip arthroplasty, status post avascular necrosis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to July 1976 and from June 1979 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 decision. In October 2018, the Board remanded the issues for further development. The Veteran's service treatment records (STRs) from his period of service from July 1973 to July 1976 appear incomplete. Attempts to locate additional STRs from the National Personnel Records Center (NPRC) were made in November 1992 and October 2014, to no avail. The Veteran was notified of the missing records and asked to submit any STRs in his possession in July 1992 and November 2014. On both occasions the Veteran indicated that he had no STRs in his possession; however, in December 2014 he indicated that he was not concerned with the missing records and asked that his claims continued to be processed. See Report of General Information. Consequently, the Board finds that additional attempts to obtain any missing STRs would be futile and the duty to assist has been met. 38 C.F.R. § 3.159. Service Connection The Veteran contends that his back, neck, and bilateral hip disabilities are the result of a skiing accident during cold weather survival training in 1980 and heavy lifting required by his in-service duties. 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of degenerative disc and joint disease of the cervical and lumbar spine, and bilateral total hip arthroplasty, status post avascular necrosis. See October 2019 VA examination; see also private and VA treatment records. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. Diagnostic studies show the Veteran was not diagnosed with degenerative changes of the lumbar spine until 2006, of the cervical spine in 2010, and avascular necrosis in 2012 followed by total hip arthroplasties in 2015 and 2016, more than two decades after his separation from service in 1983 and outside of the applicable one-year presumptive period. While the Veteran is competent to report experiencing symptoms of back, hip, and neck pain since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with his reports in contemporaneous treatment records. Notably, while the STRs confirm a ski injury in 1980, these records are negative for complaints referrable to the neck, back or hips. There are also no complaints, treatment, or diagnoses of back, neck or hip disabilities in the three years following the accident or on the separation examination in March 1983. The Board additionally notes the Veteran alternatively asserted his disabilities were the result of heavy lifting; however, the majority of the Veteran's service was spent performing duties as an equipment reports clerk. VA treatment records indicate the first complaints of low back pain were in March 2006 with an onset of 2005 after injuring it taking skirting off his house. He also reported being in a motor vehicle accident in 1996. He first reported neck pain to VA in August 2010 and denied trauma. The first documented hip complaints were in 2011. These are clearly outside of the presumptive period and with regard to the back there is some indication of intercurrent causes. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for back, neck and hip disabilities may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's disabilities and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The October 2019 VA examiner opined that the Veteran's back, neck, and hip disabilities were not at least as likely as not related to an in-service injury, event, or disease, including the ski accident or heavy lifting. The examiner reasoned that while the STRs document the accident, the emergency room and orthopedist history and exams were negative for any trauma of the neck, back, or hips due to skiing. Follow-up visits were also negative for the claimed disabilities and as were the remaining three years of records while the Veteran was active duty, to include at separation examination. The examiner indicated that the Veteran's description of the injury on active duty did not coincide with the emergency room and orthopedic records and that this type of injury was not significant enough to account for his current conditions. The examiner further stated that there was a 23 year gap in treatment from his discharge from service. The examiner also acknowledged the Veteran's statements regarding heavy lifting but found these statements were generalized and vague. The examiner explained that had there been significant neck, back and hip symptoms ongoing during and/or immediately post-service, the Veteran would not have been able to engage in the carpentry, plumbing, and electrical fields as these would require lots of bending, twisting, turning, crawling, and kneeling. The examiner indicated the Veteran reported general body aches which caused him to quit working and directly coincided with his rheumatoid arthritis, unrelated to the claimed conditions, diagnosed in 2011. The examiner stated that neck and back pain were very common complaints in the general population. The examiner again noted the Veteran's STRs and his history were negative for types of injuries that would account for his current neck condition. The examiner found the Veteran's degenerative neck changes were more than likely due to all the bending over required in carpentry and plumbing. The Veteran's lumbar degenerative changes were also found to be more likely due to all the bending over required in carpentry and plumbing. The examiner noted that the back pain became most bothersome directly after he removed skirting from his house in 2005. The examiner found that the Veteran's avascular necrosis was most likely due to steroid treatment for gout diagnosed three years prior to the necrosis, which compromise bone vasculature, and his rheumatoid arthritis. The examiner concluded that based on all records reviewed, the Veteran's current neck, back, and hip conditions were less likely related to service, including his military job or skiing injury. The Veteran has not provided any contrary opinions. While he believes his disabilities are related to an in-service injury, event, or disease, including heavy lifting and a ski accident, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against the claims, there is no reasonable doubt to be resolved, and the claims are denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.