Citation Nr: 21031847 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-14 828 DATE: May 24, 2021 ORDER Service connection for a back disability is denied. Service connection for a neck disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a back disability began during active 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 disability began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from December 1976 to December 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a lower back/spine disability and a neck disability. A second rating decision was issued in September 2015 following the submission of new evidence. This decision continued the denials of service connection. The Veteran's notice of disagreement (NOD) was received in October 2015.The RO issued the statement of the case (SOC) in January 2017, and the Veteran's VA Form 9, substantive appeal was received in March 2017. In January 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In April 2020 the Board remanded the case to the RO for further development and adjudicative action. In the April 2020 Board remand, the Board directed the RO to "[a]ttempt to locate all outstanding personnel and service treatment records from February 1978 which may relate to the Veteran's MVA from the appropriate repositories and associate all documents obtained with the electronic claims file." The RO requested the Veteran's complete STRs and personnel file in May 2020. See May 2020 VA Form 21-3101 Request for Information. The April 2020 Board remand further instructed the RO to document the unavailability of the records if they are unavailable and to provide the Veteran with notice of that fact and allow an appropriate period of time for the Veteran to respond. In this regard, the Board finds that there has been substantial compliance with the April 2020 remand directives. The RO sent the Veteran a letter in May 2020 notifying him that they had requested his service treatment records. The only service records associated with the claims file following the RO's request were personnel records duplicative of those already of record and did not include STRs or any new information relating to the MVA. While the RO did not provide a formal finding of unavailability, the Veteran was duly notified of the RO's attempts to locate additional records; and, such a finding of unavailability was implicit in the supplemental statement of the case (SSOC) issued by the RO in December 2020. The SSOC again informed the Veteran that his personnel and treatment records were requested from the National Personnel Records Center and further stated that no evidence was found in those records which reveals complaints or treatment for back or neck injuries or a relationship between the Veteran's current back and neck disabilities and service. The Veteran was informed of the RO's decision and instructed that he had 30 days to respond with additional comments or evidence before the case would be returned to the Board. To date, no such comments or evidence has been received. Therefore, the Board finds that remand solely for the RO make a formal finding of unavailability would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a neck disability. The Veteran seeks service connection for neck and back disabilities. Specifically, he contends that his current back and neck disabilities originate from a February 1978 motor vehicle accident (MVA) when the vehicle he was driving was struck by a drunk driver and rolled over five times before coming to a rest. See e.g. February 2015 lay statement. The Veteran reported that he and his passenger were both taken to the base hospital. See id. The Veteran has also stated that the Marine Corps vehicle he was driving was totaled and a fellow Marine was also injured or killed. See September 2016 Congressional Privacy Release form. The Veteran's STRs contain a February (year illegible) emergency room note indicating that the Veteran was taken to the Naval Regional Medical Center emergency room in Camp Pendleton by the Camp Pendleton Fire Department following an MVA on base. The ER note indicates that the Veteran suffered an injury to his left elbow. He had full range of motion and an X-ray was negative. The date of that record is not clear, but it appears to be February 1 or February 12. Notably, at the Board hearing, the Veteran testified that his birthday is February 7; and, the emergency room record indicates that the Veteran was age-19 at the time of that treatment. The Veteran's DD Form 214 confirms that the Veteran's birthday is February 7, 1958; therefore, assuming the emergency room report accurately recorded the Veteran's age at that time of treatment, that record must have been dated prior to February 7, 1978. (The Veteran asserts it was February 1, 1978). However, because the year is not legible, the record could have been from February 12, 1977, as the Veteran would have been 19 on that date as well. It is simply not clear. Another STR, clearly dated on February 2, 1978, shows that the Veteran presented with symptoms of vomiting, headaches, and left hip pain due to "an accident where he fell on that side." STRs also indicate that in May and June 1978, the Veteran was treated for upper back pain. In addition, the STRs show that the Veteran underwent a neuropsychiatric examination in August 1978. The Veteran maintains that he suffered a concussion at the time of the accident and that the need for the neuropsychiatric evaluation was because of residuals from his concussion. The Veteran's separation examination is negative for complaints of back or neck pain. During his January 2020 Board hearing, the Veteran stated that the MVA was more serious than the ER note suggests and that this would be shown by the official accident report, which has not been associated with the record. See Hearing Transcript at 2, 4. However, and as noted in the introduction, the RO has made numerous attempts to obtain any further corroborating information but has not received any such information. An August 2013 response letter from the National Personnel Records Center provided some very general information regarding traffic and personnel movement on the base around the time of the accident but stated that they do not have the medical record the Veteran requested. The letter did not contain or mention the accident report or whether there was a line of duty determination conducted following the accident. The medical evidence indicates that the Veteran has current back and neck disabilities. See e.g. October 2015 private Neck and Back disability benefits questionnaires (DBQs). The Veteran has been diagnosed with lumbar spinal stenosis, status post lumbar fusion and laminectomy, degenerative joint and disc disease of the lumbar spine, and cervical spondylosis. See id; see also May 2015 VA examination. The question for the Board is whether the Veteran's current back and neck disabilities are related to the documented in-service MVA or upper back pain, or to some other in-service injury or disease. Treating the Veteran's degenerative disc disease of the lumbar spine and cervical spine as a form of arthritis, a chronic disease under 38 C.F.R. § 3.309(a), there is no competent objective evidence of arthritis within the first post-service year. Private treatment records indicate that degenerative changes of the Veteran's lumbar spine were first revealed by a June 2004 CT scan, nearly 25 years after his separation from service and more than two decades outside of the applicable presumptive period and degenerative changes of the Veteran's cervical spine were not revealed until October 2015, more than 30 years after separation from service. Therefore, in order for the presumption to apply, there must be evidence in the record to support a theory of continuous symptomology. 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Post-service, a June 2001 private treatment note indicates that the Veteran reported a past medical history of "Herniated discs L4-L5" and also reported current left shoulder pain for the past two weeks. A November 2007 private radiology consultation indicates that the Veteran had multilevel degenerative disc and facet changes. There were mild degenerative disc changes of L5/S1 and moderate degenerative facet changes at L4/5 and L5/S1. The private physician provided a note to rule out contra-indications to chiropractic adjustments and get structural information to allow proper adjustment. The Veteran was provided a VA examination in May 2015. The VA examiner provided diagnoses of status post-operative fusion laminectomy of the lumbar spine and degenerative joint and disc disease of the lumbar spine. The Veteran stated that the onset of symptoms was 1982. He reported experiencing neck and shoulder pain first in 1982 and had difficulty turning his head at times. The Veteran reported that his back pain first began in late 1999 and only occurred when he laid down. He stated that he had treatments from chiropractors' massage therapists, and acupuncturists for over 30 years. The Veteran reported that his symptoms have worsened over time. The examiner opined that the Veteran's current back disability is less likely than not caused by an in-service injury, event, or illness. The examiner noted the Veteran's report of experiencing an in-service MVA but noted that there was no follow up or mention of intervening therapy or evaluation during service. The examiner also noted that the Veteran reported experiencing an injury at work in 2000. The Veteran underwent another VA examination in May 2016. The examiner noted diagnoses of degenerative arthritis of the spine, spinal stenosis, and L3-S1 laminectomy and L5-S1 fusion. The Veteran reported onset of symptoms in service, following the MVA. He reported going to the chiropractor one time and being told that he broke his neck. Notably, the Veteran reported that he hurt his lower back at work in 2000 which herniated his back. The VA examiner opined that the Veteran's current back disability is less likely than not caused by an in-service injury, event, or illness. The examiner noted that they reviewed the Veteran's STRs but found nothing pertaining to spinal stenosis or degenerative disc disease and no evaluation for a back injury during service. The examiner noted that the Veteran endorsed an injury to his back after leaving service. The examiner stated that the surgical treatment for the Veteran's back was only recent and thus unlikely to be related to the Veteran's active service. The Veteran underwent a VA examination in connection with his neck disability in January 2017. The VA examiner provided a diagnosis of degenerative arthritis of the spine and cervical disc disease. The Veteran reported onset of neck symptoms following an in-service MVA in 1979. He stated that over the years he has been treated with chiropractic and massage therapy. The Veteran stated that he had not made a claim sooner because he could not remember the accident until recently. The VA examiner opined that the Veteran's current neck disabilities are less likely than not caused by an in-service injury, event, or illness. The examiner explained that there is no evidence of fracture as previously claimed and noted that the first record of neck symptoms is in a 2007 chiropractic letter. The examiner stated that there is no record of a neck injury incurred in the in-service MVA, only an injury to the left arm for which he was treated and released. The examiner noted that there is no service record of a neck injury and as late as 2013, the Veteran's neck exam was reported as normal. X-rays of the cervical spine revealed normal vertebral body heights with no evidence for a fracture or destructive lesion, discogenic change with loss of disc space height at C5-C6 and osteoarthritis change with marginal spur formation at level C3 through C7. Although the Veteran has asserted that he injured his back and neck in the in-service MVA and has experienced back and neck pain since, neither STRs nor service personnel records indicate that the Veteran sustained a back or neck injury as a result of the documented MVA. Moreover, the Veteran has made inconsistent statements regarding the onset of his neck and back pain. Compare May 2015 VA examination report with May 2016 VA examination report. The Board notes that the first documented treatment for back or neck pain is the notation of herniated L4-L5 in private treatment records dated in June 2001. The passage of many years between discharge from active service and the medical documentation of a claimed disability is one piece of evidence weighing against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Given the inconsistent statements regarding the onset of symptoms, coupled with the absence of any corroborating documentation of any treatment for a back or neck injury resulting from the in-service MVA, the Board places greater weight on the medical evidence of record. Even if we presume the Veteran has had continuous pain since service, the fact that he reported an intervening injury to his back post-service, coupled with the negative nexus opinions weighs heavily against the claim. Therefore, a relationship between the Veteran's in-service MVA and current back and neck disabilities has not been established. Given that the VA examiners performed a physical assessment of the Veteran, reviewed the service records and private treatment records and provided a complete rationale based on sound medical principles, the opinions are highly probative. While the Veteran believes his current back and neck disabilities are related to the 1978 MVA, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing and to link the current back and neck disabilities with the neck and back pain alleged during service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In other words, while the Veteran is competent to report back and neck pain since service as these are observable symptoms capable of lay observation, he is not competent to provide an opinion linking his current back and neck disabilities to the back and neck pain he felt in service. Moreover, as previously noted, the Veteran's reports of experiencing back and neck pain since the in-service MVA are inconsistent with other statements made by the Veteran as well as the objective medical evidence of record including the 1980 separation examination. Consequently, the Board gives more probative weight to the competent medical evidence. There are several private medical opinions of record. In April 2016, the Veteran submitted a private DBQ filled out by Dr. L in October 2015. Dr. L indicated that he reviewed the Veteran's service records, and he noted that the Veteran was in an MVA in 1978 and had injuries to his back and neck; and, that he has had chronic back and neck pain since that time. As noted above, the STRs do not show injuries to the back or neck at the time of the MVA, and the notation on the DBQ is merely a recording of the Veteran's own self-reported history. Likewise, the Veteran's private chiropractor, Dr. G. opined that the Veteran's diminished vertebral body height at both C5 and C6, with significant spurring was consistent with old trauma, and noted the Veteran's self-reported history of an in-service MVA. The Veteran submitted an opinion prepared by another chiropractor, Dr. Ott, in June 2016; and, submitted a July 2016 opinion from Dr. L. Both opinions are predicated on the notion that the Veteran injured his back and neck in the 1978 MVA. However, as noted above, there is no indication in the record that the Veteran's back and/or neck was injured in the 1978 MVA, other than the Veteran's own self-reported history, which is not consistent with the other evidence of record including the medical records documenting the MVA. In essence, the opinions all rely, to varying degrees, on the Veteran's self-reported history of suffering back and neck injuries during service as a result of the 1978 MVA and/or experiencing neck and back pain since that time, which, for the reasons stated above, is not reliable. Moreover, none of the opinions consider or address the Veteran's post-service back injury that he reported sustaining at work in 2000. For these reasons, the private opinions are based on an inadequate factual premise, and are therefore not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal). Accordingly, there is no probative evidence of any in-service back or neck injury upon which to base direct service connection. Here, the Veteran's service treatment records do not show that the in-service MVA resulted in a back or neck injury as reported by the Veteran. While he was treated for a muscular strain of the upper back in May and June 1978, he received no other treatment for his back during service; his separation examination was negative for complaints of neck or back pain, and he stated during the May 2015 VA examination that he did not experience neck pain until 1982 and did not experience back pain until 1999. (Continued on the next page) For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for back and neck disabilities. The benefit of the doubt doctrine is not for application, and entitlement to service connection is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.