Citation Nr: 21031796 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-54 073 DATE: May 24, 2021 ORDER Entitlement to service connection for a low back disorder, to include arthritis, is denied. Entitlement to service connection for a neck disorder, to include arthritis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a low back disorder, to include arthritis, began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a neck disorder, to include arthritis, began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder 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 neck disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1978 to December 1982. These issues were denied by the Board in an August 2019 Board decision. The Veteran appeal these claims to the United States Court Appeals for Veterans Claims (Court). The Court issued a joint motion for remand (JMR) and vacated the August 2019 Board decision. The Board remanded the issues in a January 2021 decision for further development. The issues have since returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a low back disorder, to include arthritis, is denied. The Veteran asserts that he is entitled to service connection for a low back disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's low back disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. In a February 1979 service treatment record (STR) the Veteran complained of back pain. He stated that he has symptoms when lifting weights. The Veteran stated he had back trouble before he enlisted in the Army, but he has never been treated by a doctor. The Veteran was assessed to have a back strain. In an October 1981 STR, the Veteran complained of back pain below the left scapula status post fall in April 1980. The medical provider diagnosed the Veteran with back pain. In an October 1981 STR, the Veteran complained of back pain due to a fall off stairs. The Veteran was assessed to have a bruised back. In an October 1981 STR, the Veteran was evaluated for chronic back pain status post fall in April 1980. On the June 2012 VA back examination, the examiner indicated that the Veteran has been diagnosed with a back disorder; however, the examiner stated that the Veteran has a normal lumbar spine examination. The examiner remarked that there is no pathology found on the back examination. The Veteran stated that he injured his back while washing windows in 1978. He stated that he was unconscious and was treated at the medical center. The Veteran stated he did not complain of back pain again. The Veteran stated he currently has constant back pain. The examiner opined that the Veteran's low back disorder is less likely than not caused by service. The examiner reasoned that the Veteran was seen for an injury on one occasion only but was not seen again for that injury. The examiner noted that the Veteran has not sought treatment for his back pain in the years since. The examiner stated that there is no pathology found. The examiner stated the Veteran had a normal examination and there is no evidence of chronicity and no evidence of treatment after the single in-service injury. In an April 2013 VA treatment record, the imaging found the Veteran to have mild degenerative changes of the lumbar spine. In a July 2015 statement, the Veteran stated that during basic training in 1978, he fell from the second floor while washing windows. He stated he injured his lumbar spine. In a July 2015 statement, the Veteran's wife stated that he currently experiences pain. In a July 2015 statement, I.D. stated that the Veteran has had chronic and severe back pain since they met in the 1970s. He stated that the Veteran was being treated for the back pain. I.D. stated that he observed the Veteran to be in excruciating pain. A November 2016 Veterans Health Administration (VHA) opinion found that the Veteran's low back disorder, to include degenerative changes and degenerative disease, is less likely than not caused by service. The examiner reasoned that the STRs do not demonstrate that a back condition was persistent while on active duty as determined by either the treatment notes, imaging studies, or clinical course of the Veteran. The examiner stated that from a medical point of view, the Veteran experienced a minor traumatic, self-limiting condition which resolved as expected of such injuries as explained in medical literature. The examiner consequently found that it would not be likely that complications from this military service event would be expected to resurface later on in his life. The VHA examiner stated that the Veteran's symptoms arose many years after the in-service injury or events and this is a considerable period of time after the Veteran left military service and would have severed any causal connection to the current issue. Also, the November 2016 VHA examiner stated that the Veteran was 52 years old when his imaging studies confirmed the degenerative findings, and this would have been at a time when such features would have been expected according to medical literature. In an October 2020 private treatment letter, the private medical provider stated that the Veteran injured his spine during basic training when he fell two stories to the ground while washing windows. The medical provider stated that since the injury, the Veteran has had continued back pain. The medical provider stated the Veteran has undergone physical therapy, pain medication, and topical medication. The medical provider stated that the Veteran is unable to finish the physical therapy due to pain. The Veteran reported that the pain started after he fell in basic training. The medical provider stated that the osteoarthritic changes present could have resulted from the fall that occurred 30 years prior. The private treatment provider stated that aging contributes to but does not directly cause osteoarthritis, which is consistent with the multifactorial nature of this condition. The medical provider stated that most people do not develop symptoms until significant joint damage has occurred. In a November 2020 statement, W.A.P, a soldier that served with the Veteran, stated that while serving in Germany, the Veteran complained of his injury that occurred in basic training. W.A.P. stated that in 1981, while stationed in Kentucky, the Veteran continued to complain about his injury. W.A.P. stated that the Veteran complained of the injury after separation from service. The February 2021 VA examiner opined that the Veteran's low back disorder is less likely than not caused by service. The examiner stated that the Veteran does not have a diagnosis of a lumbar strain. The examiner stated that the Veteran is diagnosed with multilevel lumbar DDD with partial stenosis per the disability benefit questionnaire (DBQ) and imaging. The examiner stated that the Veteran has no documented back injury in service. The examiner stated that the injury in service was the left mid-thoracic spine. The examiner stated that the Veteran has variously reported being hit by falling windows and falling from a second story window, but documents cite a fall down stairs as the mechanism of injury in April 1980. The examiner noted that an October 1981 STR noted pain below the left scapula and attributed this to muscle bruising; however, a comment by the medical provider is significant as it stated "supra-tutorial," which implies a psychosomatic condition. The examiner stated that the Veteran served an additional year without further complaints or problems and then declined a separation examination in December 1982. The examiner finds it unlikely the Veteran would have refused an examination had significant low back symptoms had been present. Therefore, the examiner found that there is no lumbar nexus established in-service. The February 2021 VA examiner also found there to be no evidence of a continuous problem since service, despite the Veteran's and lay person's claims to the contrary. The examiner found there is no evidence of care until the filing of the claim in 2012. The examiner stated that a workup initiated in 2013 identified the naturally occurring processes of DDD. The examiner stated that 50 percent of men over the age of 50 will have evidence of DDD, with prevalence arising significantly per decade thereafter. The examiner stated that the Veteran's onset is age appropriate. The examiner finds that the Veteran's onset of symptoms occurred around 2012, which is consistent with minimal changes found one year later, thereby explaining the Veteran's symptoms. Therefore, the examiner concluded that it is less likely than not that the Veteran had a significant lumbar spine injury while in service. The examiner stated that it is more likely than not that the Veteran has naturally occurring degenerative spine disease involving the lumbar spine; it is less likely than not that lumbar strain is present or due to service. The examiner stated that there is no evidence of a nexus in service or a separation or until around 2012 or 2013. In a March 2021 VA addendum opinion, the examiner again opined that the Veteran's low back disorder is less likely than not caused by service. The examiner stated that the medical evidence is clear of a new onset of the condition arising in 2012 to 2013. The examiner stated there is no evidence of strain at separation from service or as late as 2012. The examiner stated that the medical evidence does not support the Veteran's and lay persons' contentions. The examiner further stated that regardless of the location of the injury in-service, such an injury would not cause the Veteran's DDD. The examiner stated that this is established medical knowledge and practice. Based on the foregoing, the Board concludes that there is no evidence that the Veteran's low back disorder was manifested in service or to a compensable degree in the first year following his separation from service. The first diagnosis of a low back disorder since separation from service occurred in 2012, over 30 years after separation from service. Consequently, service connection for a low back disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the low back disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The October 2020 private treatment letter indicates that the Veteran's low back disorder could have been caused by service, including an in-service fall. Also, the October 2020 private treatment letter stated that aging contributes to but does not directly cause osteoarthritis, which is consistent with multifactorial nature of the Veteran's condition. The medical provider stated that most people do not develop symptoms until significant joint damage has occurred. However, the October 2020 private treatment provider does not appear to have reviewed the claims file or STRs, address the diagnosis over 30 years after separation from service, or cite medical literature in making the findings. Therefore, the Board finds this opinion to be less persuasive. The November 2016 VHA opinion, February 2021 VA opinion, and the March 2021 VA addendum opinion all stated that the Veteran's low back disorder was not related to his service and instead found the Veteran's DDD to be caused by the natural aging process. As the medical opinions were based on a full review of the record, to include consideration of lay statements, the Board finds them persuasive. Further, the Veteran's own statements relating his low back disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether arthritis, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, arthritis is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disorder. Accordingly, it must be denied. 2. Entitlement to service connection for a neck disorder, to include arthritis, is denied. The Veteran asserts that he is entitled to service connection for a neck disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's neck disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. In a May 1981 STR, the Veteran complained of a neck injury during softball. On the June 2012 VA neck examination, the examiner indicated that the Veteran has been diagnosed with a neck disorder; however, the examiner stated the Veteran had a normal cervical spine examination. The Veteran stated that while washing windows in 1978 he fell. He stated that he was unconscious and treated at the medical center. He stated that he also experienced neck pain in Germany after playing softball in 1981. The Veteran stated he has experienced episodic pain for 25 years. The examiner opined that the Veteran's neck pain is less likely than not caused by service. The examiner reasoned that the Veteran's neck pain was less likely than not incurred in or caused by the claimed in-service injury in 1978. The examiner stated there is only one incident documented of neck pain after playing softball in 1981. The examiner noted the Veteran was seen once when he was injured and never seen again for that injury. The Veteran has not since sought treatment for his neck pain. The examiner stated there is no pathology found and the neck examination was normal. The examiner stated there is no evidence of chronicity and no evidence of treatment after injury. In an April 2013 VA treatment record, the imaging showed the Veteran to have moderate degenerative changes. A May 2013 VA treatment imaging record states that there is a reversal of the cervical lordosis consistent with musculoskeletal strain. In a July 2015 statement, the Veteran stated that during basic training in 1978, he fell from the second floor while washing windows. He stated he injured his neck. In a July 2015 statement, the Veteran's wife stated that he currently experiences pain. The November 2016 VHA examiner opined that the Veteran's neck disorder is less likely than not caused by service. The examiner reasoned that the STRs do not demonstrate that a neck disorder was persistent while in service, as determined by the treatment notes or the clinical course of the Veteran. From the medical point of view, the examiner found that the Veteran experienced a minor traumatic, self-limiting condition that resolved as expected of such injures as explained by medical literature. Consequently, the examiner found that it would not be likely that complications from military service would be expected to resurface later on in his life. The VHA examiner also stated that the Veteran's neck disorder arose many years after the events in military service. The examiner stated that this considerable period of time after separation from service would have severed any causal connection to the current issue. Finally, the VHA examiner stated that as the Veteran was 52 years old when his imaging studies confirmed the degenerative finds, this would have been at a time when such features would have been expected according to the medical literature. The February 2021 VA examiner opined that the Veteran's neck disorder is less likely than not caused by service. The examiner stated that the Veteran does not have a diagnosis of a neck strain. The examiner stated that the Veteran is diagnosed with multilevel cervical DDD with partial stenosis per the DBQ and imaging. The Veteran has no documented neck injury in service. The examiner stated that the injury in service was to the left mid-thoracic spine. The examiner stated that the Veteran has variously reported being hit by falling windows and falling from a second story window, but documents cite a fall down stairs as the mechanism of injury in April 1980. The examiner noted that an October 1981 STR noted pain below the left scapula and attributed this to muscle bruising; however, a comment by the medical provider is significant as it stated "supra-tutorial," which implies a psychosomatic condition. The examiner stated that the Veteran served an additional year without further complaints or problems and declined a separation examination in December 1982. The examiner finds it unlikely the Veteran would have refused an examination had significant neck symptoms had been present. Therefore, the examiner found that there is no neck disorder nexus established in-service. The February 2021 VA examiner also found there to be no evidence of a continuous problem since service, despite the Veteran's and lay person's claims to the contrary. The examiner found there is no evidence of care until the filing of the claim in 2012. The examiner stated that a workup initiated in 2013 identified the naturally occurring processes of DDD. The examiner stated that 50 percent of men over the age of 50 will have evidence of DDD, with prevalence arising significantly per decade thereafter. The examiner stated that the Veteran's onset is age appropriate. The examiner finds that the Veteran's onset of symptoms occurred around 2012 which is consistent with minimal changes found one year later, thereby explaining the Veteran's symptoms. Therefore, the examiner concluded that it is less likely than not that the Veteran had a significant cervical spine injury while in service. The examiner stated that it is more likely than not that the Veteran has naturally occurring degenerative spine disease involving the cervical spine. As requested, it is less likely than not that a cervical strain is present or due to service. The examiner stated that there is no evidence of a nexus in service or after separation or until around 2012 or 2013. In a March 2021 VA addendum opinion, the examiner again opined that the Veteran's neck disorder is less likely than not caused by service. The examiner stated that the medical evidence is clear of a new onset of the condition arising in 2012 to 2013. The examiner stated there is no evidence of strain at separation from service or as late as 2012. The examiner stated that the medical evidence does not support the Veteran's and lay contentions. The examiner further stated that regardless of the location of the injury in-service, such an injury would not cause the Veteran's DDD. The examiner stated that this is established medical knowledge and practice. Based on the foregoing, the Board concludes that there is no evidence that the Veteran's neck disorder was manifested in service or to a compensable degree in the first year following his separation from service. The first indication of a neck disorder occurred in 2012, over 30 years after separation from service. Consequently, service connection for a neck disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the neck disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no evidence that the Veteran's neck disorder is otherwise related to service. The Veteran's post-service private and VA treatment records are silent for an opinion relating his neck disorder to service. The only competent evidence in the record that addresses this question is the November 2016 VHA opinion, February 2021 VA opinion, and March 2021 VA addendum opinion, all of which stated that the Veteran's neck disorder was not related to his service. As there is no competent and probative evidence to the contrary, and the November 2016 VHA opinion, February 2021 VA opinion, and March 2021 VA addendum opinion were based on a full review of the record, to include consideration of the lay statements, the Board finds them persuasive. Further, the Veteran's own statements relating his neck disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether arthritis, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, arthritis is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a neck disorder. Accordingly, it must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.