Citation Nr: 21040635 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-12 750 DATE: July 6, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc disease is denied. Entitlement to service connection for lumbar spine degenerative disc disease is denied. FINDINGS OF FACT 1. The evidence does not demonstrate that the Veteran's cervical spine degenerative disc disease manifested during active duty service, manifested within one year of separation from service, or is otherwise etiologically related to service. 2. The evidence does not demonstrate that the Veteran's lumbar spine degenerative disc disease manifested during active duty service, manifested within one year of separation from service, or is otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 until June 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a March 2020 hearing before the undersigned; a transcript is associated with the claims file. In an April 2020 decision, the Board remanded these claims for further development. They now return to the Board for adjudication. Service Connection Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38C.F.R. §3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38C.F.R. §3.303(d). 1. Entitlement to service connection for a cervical spine disability 2. Entitlement to service connection for a lumbar spine disability The question for the Board is whether the Veteran has cervical and lumbar spine disabilities that began in service, within a year of service, or are otherwise related to service. The Board notes that the Veteran is currently diagnosed with degenerative disc disease of the cervical and lumbar spine. The first Shedden element is thus satisfied. The Veteran's service treatment records also indicate that he was involved in a motor vehicle accident in June 1978 and was put on bedrest from June 1978 until September 1978. Thus, the second Shedden element is satisfied. As such, the remaining determination is whether the two are linked. The Board finds that July 2018 post-service treatment records reflect current upper and lower back problems for "greater than 20 years." Furthermore, the lay evidence of record, specifically the Veteran's testimony before the undersigned, reflects that the Veteran has complained of upper and lower back pain since his in-service June 1978 motor vehicle accident. The Board notes that the Veteran participated in a September 2012 VA examination for his back disabilities. However, because this examination did not consider the Veteran's lay statements of continuity, it is given little probative weight. See Miller v. Wilkie, 32 Vet. App. 249 (2020). As a result of the April 2020 remand, VA obtained a July 2020 VA medical opinion. Therein, the VA examiner opined that the Veteran's degenerative disc disease was less likely than not related to service. After outlining the Veteran's in-service treatment for his back, the examiner indicated that he was diagnosed with a lumbar muscle strain after the 1978 accident, but that lumbar spine x-rays were noted as within normal limits. Further, after considering the Veteran's lay statement of continuity, the VA examiner noted that post-service treatment records were silent for back complaints until 2008, 27 years post separation from service. The examiner concluded that "there is a gap and the evidence does not support chronicity of care." Upon review of the above evidence, the Board finds that the Veteran is not entitled to direct service connection for his neck and back degenerative arthritis because the third Shedden element of service connection, that of a causal relationship between the Veteran's present disabilities and service, is missing. The Board finds the July 2020 VA medical opinion to be of great probative value as it is well-reasoned and supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In this examination, the examiner stated that the Veteran's degenerative arthritis was not caused by service, but rather, "likely age-related changes." Furthermore, the examiner noted that the Veteran was diagnosed with a muscle strain in service, not an orthopedic disability, and that his x-rays were within normal limits. These medical conclusions are not contradicted by any medical evidence of record. The Board also considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. Here, however, although acknowledging that the Veteran sustained significant trauma from a June 1978 motor vehicle accident, the Board does not find that any neck or back symptomatology following that in-service accident developed into a chronic disability subject to presumptive service connection. The Board notes that although the Veteran claims that his neck and back disability continued through separation, the earliest evidence in the claims file is from a December 2008 family practice note showing a complaint of intermittent back pain. Indeed, the Veteran's post-service treatment records document that he was not diagnosed with degenerative disc disease until November 2012; the dates of this treatment are decades after discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim, just not the only or sole factor). The Board further finds that the evidence does not show that the Veteran's arthritic changes of the neck and back manifested during service or within one year of his separation from service. Furthermore, even though the Veteran has credibly testified that he has endured significant neck and back pain since service, he is not competent to provide a medical nexus opinion linking his time in service to his current disabilities or determine that these symptoms were manifestations of his current arthritis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the July 2020 VA examiner considered the Veteran's credible reports of ongoing pain in his neck and back and nevertheless reached the conclusion that these disabilities are less likely than not related to service, to include his in-service motor vehicle accident. Consequently, the Board gives more probative weight to the July 2020 VA examination and post-service treatment records indicating that the Veteran's arthritis was actually first manifested and diagnosed decades after service separation. In sum, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claims for cervical spine and lumbar spine disabilities on a direct or presumptive basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claims must be denied. 38 U.S.C. § 5107(b). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.