Citation Nr: 21032684 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 12-09 800 DATE: May 27, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disability, previously characterized as a lower back condition, to include degenerative disc disease (DDD) and degenerative joint disease (DJD), is denied. 2. Entitlement to service connection for a cervical spine disability, previously characterized as an upper back condition, to include DJD, is denied. FINDINGS OF FACT 1. A lumbar spine disability did not have its onset in service, DJD was not manifested within one year of service discharge, and the current lumbar spine disability is not otherwise related to service. 2. A cervical spine disability did not have its onset in service, DJD was not manifested within one year of service discharge, and the current cervical spine disability is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability, to include DDD and DJD, have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a cervical spine disability, to include DJD, have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran serviced on active duty from June 1979 to June 1982. The Veteran appeared at a September 2014 videoconference hearing before a Veterans Law Judge. A hearing transcript is of record. In December 2019, the Veteran was informed that the Veterans Law Judge who had conducted the September 2014 Board hearing had retired, and he had the right to an additional hearing before a different Veterans Law Judge. In December 2019, the Veteran indicated that he did not want an additional hearing. Thus, the Board finds there is no pending hearing request. In December 2014, the Board remanded the claims for service connection for lumbar spine and cervical spine disabilities for private treatment records, Social Security Administration (SSA) records, and an addendum medical opinion. In July 2019, the Board referred the Veteran's file for an addendum medical opinion. In April 2020, the Board remanded the claims for private treatment records, updated VA treatment records, and a VA examination. The Board finds there was substantial compliance with this development. The case now returns to the Board for further appellate review. The Board notes that in the February 2021 VA Form 21-4138, Statement in Support of the Claim the Veteran stated he no longer wishes to be represented by The American Legion. Thus, The American Legion has been removed as representative. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as DJD, which is arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for a lumbar spine disability, to include DDD and DJD. The Veteran testified in September 2014 that his lumbar spine disability is the result of a fall he suffered in service. Around April 1981, the Veteran fell from the back of a truck onto a rock. After the fall, he started to experience tingling in his legs, and his legs started going numb. He was told he damaged some nerves in his back. Back pain was off and on during service. Sometimes he would wake up in the morning and experience numbness. He would go to sick call, and he was told it was just nerves. At the time he visited the field clinic, he had a little swelling and redness on his lower back. He did not mention his back at discharge because he was addicted to the pain killers prescribed for his back which did not work to control the pain. He went to the emergency room for his back several times post-service. X-rays were taken, and he was told a disc wasn't lined up properly. He also mentioned neck pains and that both the neck and back pains may be related to service. Although the Veteran recognizes that he had accidents following service, he insists he had back and neck pains prior to these post-service incidents. In the April 2012 VA Form 21-4138, the Veteran stated his back and neck disabilities may also be the result of training during extremely cold weather and sleeping on the ground with outdated military equipment, such as sleeping bags, pup tents, and air mattresses. He went on to state that at the time of his fall from the truck, x-rays showed swelling, bruising, and severe strains. He was given pain medication and three days off duty. On a February 2016 VA Form 21-4138, the Veteran stated he believes 50 percent of the back disability was caused by service. Dr. Charles Bouldin told him that injuries that happen 40 years ago can still have an effect today. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a lumbar disability. The reasons follow. As to evidence of a current disability, the November 2020 VA examination report shows a diagnosis of degenerative arthritis of the spine. Additionally, a May 2009 private x-ray of the lumbosacral spine shows DDD. Thus, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, service treatment records (STRs) show the Veteran was seen for low back pain for two months in July 1981. However, STRs are silent for any incident involving a fall. STRs begin in October 1979 and continue throughout service for various ailments such as a cold, groin pain and rash, and blurry vision. He was seen in January 1980 with low back pain for three days, and he attributed it to lifting targets. The notations made during the July 1981 visits do not mention a fall nor do STRs show the Veteran visited sick call multiple times during service regarding his back. At that time, he reported recurring low back pain. The July 1981 back x-ray, which included a notation that the Veteran was having such pain for two months, was negative. This finding contradicts the Veteran's statement that x-rays in service showed swelling, bruising, and severe strains. It seems unlikely medical professionals would fail to document a fall when the Veteran was being seen for a related condition. The Board does not find the Veteran's report of a fall in service to be credible. In June 1982, the Veteran declined a separation examination. He testified that he did not seek an exit examination because he was addicted to pain killers. However, on the June 1982 Statement of Opinion: Medical Examination for Separation/Retirement, a medical officer also reviewed his medical records to determine if an examination should be completed to identify conditions that may require attention. The Veteran was not subsequently scheduled for an examination; therefore, the Board finds this is evidence that he did not leave service with a back disability nor did his STRs show evidence of a chronic back disability. The Board will concede that the Veteran experienced low back pain in service. To this extent, the second element of a service-connection claim is met. However, following service, the preponderance of the evidence is against the Veteran having continuity of symptomatology of lumbar symptoms. For example, a June 1985 private treatment record documents low back pain and back strain. The Veteran felt a pop in his back when moving a patient from a bed to a stretcher and when turning to the left. There is no mention of lumbar pain since service or an in-service injury to the low back. A March 2009 private treatment report by Dr. Byers documented the Veteran's report of back pain that was ongoing for 10 years and had gradually worsened over time. He relayed that in 1998 or 1999 while driving a courier van, he hit a horse. He reported that at the time, he was told he had a neck injury and disk injury at L4-L5. In August 2007, he was unloading a truck and a piece of furniture fell on his head and symptoms recurred. He began having more significant pain in both his neck and back while driving. In December 2008, he reported he developed severe swelling and severe back pain and had not worked since that time. An April 2009 VA treatment record documents that the Veteran had a 30-year history of low back pain. The Board does not find this report of 30 years of low back pain to be reliable because it conflicts with a treatment record only one month earlier. There is no reason for the Veteran to omit this 30 year history of back pain during the March 2009 treatment for back pain. Moreover, he did not report low back pain since service three years after service which is close in time to discharge. The Board finds the earlier June 1985 and March 2009 treatment records to be a more reliable report of low back symptoms than the April 2009 VA treatment record which occurred one week after filing the claim for service connection. The Veteran underwent a VA examination in August 2009, and the examiner who performed the examination provided a negative nexus opinion. During the examination, the Veteran reported that his back had been hurting since he got out of the service, and the pain has been off and on for a number of years. The examiner opined that the lumbar spine disability is less likely related in-service lumbar strain and more likely to be an age-related progression. The examiner noted the Veteran's disc spaces are well maintained, but he has some facet sclerosis. The Board affords the August 2009 VA medical opinion high probative value, as the examiner reviewed the file, examined the Veteran, and provided an opinion that included a rationale that was based on evidence in the file and medical principles. The Board does not find the Veteran's assertion during the VA examination that he has experienced back pain since service to be credible because it conflicts with statements made while seeking treatment. Statements made during treatment tend to be highly reliable because it is in the Veteran's best interest to be honest in order to receive the best possible treatment. For example, during the March 2009 private treatment record, the Veteran reported he had pain for 10 years which coincided with his 1998 or 1999 collision with a horse, which he reported had caused a disc injury at L4-L5. In April 2012, the Veteran's wife submitted a lay statement. She noted they were married in December 1984, and during this time he experienced back pain. She wrote the Veteran said he was injured in the military and that during their marriage, he had problems with his back. She stated the Veteran even had their son stand on his back hoping it would relieve some of the pain. Sometimes his back is so painful he cannot sit up. The pain was consistent during their entire marriage. To the extent that she reports the Veteran experiencing back pain since they got married in 1984, the treatment records support this, as he injured his back in 1985 and again in approximately 1999. The Veteran asserted Dr. Charles Bouldin told him that injuries from 40 years ago can affect the body today. While that may be true, Dr. Bouldin did not provide a nexus opinion, and a VA examiner, in August 2009, had reviewed the Veteran's service treatment records and found that the current lumbar spine findings were more likely to be age related than from an acute injury and treatment in service. Thus, the allegation from the Veteran as to what Dr. Bouldin told him has been addressed by a medical professional. The March, November, and December 2015 VA medical opinions were found to be inadequate by prior Board decisions; therefore, they will not be discussed here. In September 2019, a VA neurologist provided a negative nexus opinion. The neurologist opined that the in-service injury reported was low back strain in 1981. The Veteran was placed on lifting restrictions for a week without follow-up requested or sought. The Veteran deferred an exit medical examination, and there were no further issues in the medical record that would suggest an injury that would account for chronic low back pain or lumbar spondylosis. The neurologist explained that a low back strain, in itself, is transient and recovery from this with the prescribed treatment is the standard. Furthermore, the diagnosis of low back strain does not cause DDD, spinal stenosis, spondylosis, etc. The neurologist wrote that these conditions are more likely related to a normal aging process than any injury sustained in service. The examiner noted the Veteran's claim was significantly complicated by multiple post-service accidents affecting the back. The Board affords the September 2019 medical opinion high probative value, as the examiner reviewed the file and provided an opinion that included a rationale that was based on evidence in the file, including the Veteran's in-service reports of low back pain, and medical principles. In November 2020, a VA examiner provided a negative nexus opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that according to the medical records in 1981, the Veteran was treated for recurrent lower back for two months, diagnosed as a strain with negative x-ray findings. While the Veteran was treated for a strain during service, the condition was acute only and is a self-limiting condition. The examiner wrote there was no evidence of a chronic condition or permanent residual occurring during active duty or upon exiting service. The Veteran has been out of service for several years without supporting treatment records to show continuity of the issues or that the symptoms regarding this condition emerged following discharge. The examiner acknowledged the 1985 incident, which showed that the claimant was treated for a lower back strain. In 1998, he also sustained another neck and L4-L5 disc injury during an auto collision. According to the medical records, he was driving a courier van when he hit a horse. In 2007, the claimant sustained a head injury causing pain in both his upper and lower spine when a piece of furniture fell on his head while unloading a truck. In 2009, he was diagnosed with lumbar spine DDD. The examiner explained that while the Veteran has degenerative changes, this is a multi-factorial condition for which aging is the major risk factor. The Board affords the November 2020 medical opinion high probative value, as the examiner examined the Veteran, reviewed the file in detail based on his discussion of the evidence, and provided an opinion that included a rationale that was based on evidence in the file and medical principles. As to presumptive service connection for a chronic disease (here, DJD), the Veteran was diagnosed with degenerative arthritis of the spine when he sought treatment from VA in 2009. The preponderance of the evidence is against arthritis manifesting within one year following service discharge. Thus, service connection on a presumptive basis based on a chronic disease is not warranted. While the Veteran genuinely believes that his current lumbar spine disability, at least in part, is due to the in-service symptoms he experienced, he is not competent to offer opinions as to the etiology of his current lumbar spine disability, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent and credible evidence of a nexus between the lumbar spine disability and service to weigh against the August 2009, September 2019, and November 2020 negative nexus opinions. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disability as there was a lack of symptoms in the years following service discharge, arthritis was not manifested within one year of service discharge, and medical professionals have found that the post-service lumbar spine disability is not related to in-service lumbar strain. There is no reasonable doubt to be resolved, and the claim for service connection for a lumbar spine disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a cervical spine disability, to include DJD. The Veteran testified that he hurt his neck in service when he fell from a truck. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a cervical spine disability. The reasons follow. As to evidence of a current disability, an August 2009 VA treatment report shows a diagnosis of cervical spine DJD. Thus, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, STRs show the Veteran was seen for upper back/scapular pain in January 1980. He was restricted from lifting more than 10 pounds and attending physical training for seven days. As discussed above, the STRs are silent for any indication of an in-service fall, and the Board does not find the Veteran's report of an in-service fall where he fell onto a rock to be credible. The Board will concede that the Veteran experienced upper back pain in service, but it does not find he sustained an injury or disease of the upper back in service. To this extent, the second element of a service-connection claim is met. However, following service, the preponderance of the evidence is against the Veteran having continuity of symptomatology of upper back or neck symptoms. For example, in 1998 or 1999, the Veteran sustained an injury to the neck when he collided with a horse. In 2007, the Veteran sustained a head injury when furniture fell on his head while uploading a truck. A March 2009 private treatment record documents suspected DJD of the cervical spine. During an April 2009 VA treatment record, the examiner documented the Veteran had a history of neck pain for 10 years. This onset coincides with the collision with a horse in 1998 or 1999. The August 2009 and March 2015 VA examinations do not discuss the cervical spine. The November 2015, December 2015, and September 2019 VA medical opinions were found to be inadequate for the cervical spine. None of these examinations will be discussed regarding the cervical spine. The November 2020 VA examiner provided a negative nexus opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that according to the medical records, in 1980, the Veteran was treated for scapular pain for three days after lifting. The examiner explained that while the claimant was treated for a strain during service, the condition was acute only and is a self-limiting condition. There was no evidence of a chronic condition or permanent residual occurring during active duty or upon exiting service. The Veteran has been out of service for several years without supporting treatment records to show continuity of the issues or that the symptoms regarding this condition emerged following discharge. In 1998, the claimant sustained another neck injury during an auto collision. According to the medical records, he was driving a courier van when he hit a horse. In 2007, the claimant sustained a head injury when a piece of furniture fell on his head while unloading a truck. In 2009, he was diagnosed with lumbar spine DDD. While the claimant does have degenerative changes, this is a multi-factorial condition for which aging is the major risk factor. The Board affords the November 2020 medical opinion high probative value, as the examiner examined the Veteran, reviewed the file in detail based on his discussion of the evidence, and provided an opinion that included a rationale that was based on evidence in the file and medical principles. As to presumptive service connection for a chronic disease (here, DJD), the Veteran was suspected to have degenerative arthritis of the cervical spine in March 2009. The preponderance of the evidence is against a finding that arthritis manifested within one year following service discharge. Thus, service connection on a presumptive basis based on a chronic disease is not warranted. While the Veteran genuinely believes that his current cervical spine disability, at least in part, is due to the in-service symptoms he experienced, he is not competent to offer opinions as to the etiology of his current cervical spine disability, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent and credible evidence of a nexus between the cervical spine disability and service to weigh against the November 2020 negative nexus opinion. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for a cervical spine disability as there was a lack of symptoms in the years following service discharge, arthritis was not manifested within one year of service discharge, and a medical professional has found that the post-service cervical spine disability is not related to in-service upper back/scapular pain. There is no reasonable doubt to be resolved, and the claim for service connection for a cervical spine disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.