Citation Nr: 21041815 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-20 494 DATE: July 10, 2021 ORDER Entitlement to service connection for degenerative changes, moderate to severe, status post anterior spinal cervical fusion C6-C7, is denied. Entitlement to service connection for degenerative changes, multilevel, lumbar spine, is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disability did not initially manifest during or within a year of active service and is most likely due to the natural aging process. 2. The Veteran's lumbar spine disability did not initially manifest during or within a year of active service and is most likely due to the natural aging process. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative changes, moderate to severe, status post anterior spinal cervical fusion C6-C7, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for degenerative changes, multilevel, lumbar spine, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to October 1968. His claims come before the Board of Veterans' Appeals (Board) on appeal of a February 2017 Department of Veterans Affairs (VA) rating decision. The Veteran testified in support of these claims during a video conference hearing held before the undersigned Veterans Law Judge in November 2020. In December 2020, the Board remanded these claims to the Agency of Original Jurisdiction (AOJ) for additional development. Service Connection Entitlement to service connection for degenerative changes, status post anterior spinal cervical fusion, C6-C7 Entitlement to service connection for degenerative changes, multilevel, lumbar spine The Veteran seeks service connection for neck and back disabilities on a direct basis as related to an in-service incident. During his November 2020 hearing, he explained that the incident occurred when he was at Camp Schwab in Okinawa on top of an Amtrac, an amphibious vehicle. Despite having been on such a vehicle hundreds of times, he stepped back and caught his heel on the rail, causing him to fall nine and a half feet onto his back and neck. He testified that the fall must have knocked him out as he doesn't remember anything that occurred for a few moments after the incident. He further testified that, eventually, he saw his gunnery sergeant standing over him, asking if he was okay and needed to go to the hospital. The Veteran responded that he didn't know and asked for a few minutes to remain on the ground. After ten minutes, his corporal helped him up, and the Veteran went to his trailer to lie down. The next day, he could barely get out of bed, prompting him to go to the infirmary. There, personnel gave him muscle relaxants and strong aspirin and sent him home to lie down and rest for the remainder of the week. Thereafter, he continued to experience related symptoms and sought additional medical care from corpsmen many times. He claims that he was discharged from service 68 days early, after returning from Okinawa, because the Marine Corps didn't want to keep him. He then began struggling from the time he went to work in his family-owned liquor stores, running the cash registers, doing payroll and ordering store goods. He was not able to lift or carry things. He testified that he continued to seek medical care for his neck and back, but because he did not think VA could help him (injury did not occur in combat zone), he did not submit records of the treatment or apply for VA compensation. He contends that, approximately five years after discharge from service, he woke up and couldn't feel his legs, necessitating surgery at St. Francis Hospital in Indiana. The surgeon, who is now deceased, reportedly asked him after the surgery whether he had been in a car wreck or fallen off the side of a building, the latter jokingly. He explained that the Veteran's neck was terrible for his age and likely developed from some sort of trauma or injury. The Veteran disagrees with the unfavorable results of his most recent VA neck and back examination, including the methodology the examiner used and the inferences he drew. The Veteran knows that his disabilities are a consequence of his service and claims that the examiner was too focused on the contents of the medical record rather than relevant testimony and the evaluation of the in-service injury. He requests the Board to liberally construe any ambiguities and resolve reasonable doubt in his favor. The preponderance of the evidence is against each of these claims. 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, including arthritis, 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 (one year in the case of arthritis); 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). Post-service treatment records dated since 2009 and VA examinations conducted in December 2016 and February 2021 confirm that the Veteran currently has neck and low back disabilities, variously diagnosed, including as degenerative disc disease of the cervical and thoracic spine, arthritis of the cervical and thoracolumbar spine, lumbago with sciatica, and lumbar radiculopathy. However, as the arthritis was first diagnosed decades after service, not to a compensable degree within the one-year presumptive period, service connection for arthritis may not be granted on a presumptive basis. The question thus remains whether the cervical and lumbar spine disabilities are otherwise related to the Veteran's active service, including the in-service incident, warranting grants of service connection on a direct basis. Service treatment records and lay statements from the Veteran's siblings confirm that the incident occurred. According to the Veteran's service treatment records, in February 1968, the Veteran presented for treatment after falling off a tractor and injuring his back; he broke the fall by landing on his elbows, but there were no signs of contusions. He had pain and tenderness at L2-L3 and slightly limited motion of the thigh. The examiner taped the Veteran's back, prescribed medications and recommended light duty for three days and a return to the clinic for reevaluation and x-rays. He diagnosed a back sprain. Three days later, the Veteran presented feeling better. The examiner recommended avoiding heavy lifting for 4 days, at which time the Veteran could return to full duty. The Veteran served until October 1968 without further complaint, at which time he underwent an examination for the purpose of securing his release from service. At that time, the Veteran did not report any back or neck problems, and the examiner noted a normal clinical evaluation of the spine. According to MH, the Veteran's brother, after discharge from active duty, while working together in their dad's store, the Veteran complained many times about his neck and back hurting and shared that "he hurt it" while he was in the military. According to KH, the Veteran's sister, when the Veteran returned from service, it was evident he had changed. The main change involved his body; he had a hard time lifting, loading and packing, crucial duties to help with the family business. She indicated that the Veteran's back and neck always caused him pain and limitations. Treatment records dated since 2009 establish that the Veteran had neck and low back problems for which he was seeking treatment. During treatment visits, the Veteran reported, and providers confirmed, a history of cervical spine surgery (fusion of the anterior cervical spine at C6-C7). Cervical spine testing revealed hardware consistent with such surgery. Two VA examiners have discussed whether the Veteran's cervical and lumbar spine disabilities are related to the Veteran's in-service fall, and their opinions are unfavorable. As noted in the December 2020 Remand, the AOJ afforded the Veteran a VA examination of his neck and back in December 2016, during which one examiner provided opinions on the matter. The reports of these examinations were inadequate as they did not contemplate the Veteran's and his siblings' statements indicating ongoing neck and back symptoms following the in-service incident, including after discharge from service, or address the extent of the injury that resulted, including by referring to the documentation of the fall found in the Veteran's service records. A second examiner therefore reviewed the record on remand and provided more comprehensive opinions on the matter, but these opinions too are unfavorable. After acknowledging the Veteran's and his siblings' statements, describing the in-service incident based on the service treatment records, and citing to online medical literature from the Mayo Clinic, he found the cervical lumbar spine disabilities less likely than not incurred in or caused by the in-service incident and most likely due to the natural aging process. He based this conclusion on the following findings: (1) The Veteran did not mention neck pain or a neck condition during service, including when he sought treatment for the fall; (2) Although the Veteran was treated for back symptoms following the incident, such treatment was successful, his medications were discontinued, and he returned to full duty within a week; (3) There is no evidence of a chronic back condition in service; (4) The Veteran served an additional eight months following the incident without further complaints; (5) The October 1968 separation examination was negative; (6) Such examination was notably thorough and included historical review; (7) The medical officer would have had the Veteran's service treatment records for review making it highly unlikely any significant back or neck condition would have gone unnoted or unreported; (8) Although the lay statements claim the Veteran's neck and back disabilities arose in service at the time of the injury, any such condition would have been evident in service after the injury, including during the eight month recovery from the acute event and on separation examination; (9) The Veteran has degenerative disc disease of the cervical and thoracolumbar spine and underwent an anterior cervical fusion in 2013; (10) These are naturally occurring conditions that were age appropriate at the time of diagnosis; (11) Fifty percent of men over the age of 50 will have evidence of degenerative spine disease, and the prevalence of such disease increases significantly per decade thereafter; (12) Degenerative arthritis is due to normal wear and tear and chronic inflammation while degenerative disc disease is due to chronic inflammation, wear and tear and natural desiccation of the discs; and (13) The injury sustained in service would not lead to findings on imaging or have any impact on the development of naturally occurring degenerative spine disease. The Board acknowledges the Veteran's disagreement with the manner in which the February 2021 examiner weighed the evidence of record, favoring the medical record over the Veteran's and his siblings' statements. However, the examiner is trained in medicine, and in offering a medical opinion, it is his prerogative to utilize the evidence as he sees fit based on his knowledge. It is then the Board's job to determine whether the opinion is adequate, and here, it is. In discussing the Veteran's case, the examiner considered all pertinent evidence of record and based his conclusion on medical literature and comprehensive, well-reasoned rationale. The examiner was not able to consider records of the neck surgery that reportedly occurred within five years of discharge because such records are not in the file. On remand, the AOJ provided the Veteran an opportunity to submit such records or written authorization for VA to obtain them, but the Veteran did not respond to the request. As the record stands, from the limited documentation available, it appears the neck surgery occurred decades after service, no earlier than 2009. The Veteran has not submitted a medical opinion refuting those of the February 2021 examiner, and his assertions linking his current neck and back disabilities to the in-service incident do not represent competent evidence of a nexus. While the Veteran is competent to report having experienced certain lay-observable neck and back symptoms such as pain since the in-service incident, having no medical background, he is not competent to offer an opinion that this pain represented the initial manifestation of his current cervical spine and low back disability diagnoses. Jandreau v. Nicholson, 492 F.3d at 1377, 1377 n.4. As such, on the nexus question, there is not an approximate balance of positive and negative evidence of record, and reasonable doubt may not be resolved in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The criteria for entitlement to service connection for cervical and lumbar spine disabilities are not met. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.