Citation Nr: 22016367 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-30 157 DATE: March 22, 2022 ORDER Entitlement to service connection for degenerative changes of the spine, lumbar and cervical, is denied. FINDING OF FACT The Veteran did not sustain an in-service incident, illness or injury to which his present spine condition may be etiologically linked. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative changes of the spine, lumbar and cervical, has not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army, on active duty from May 1968 to May 1971, to include service in Vietnam. This claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Entitlement to service connection for degenerative changes of the spine, lumbar and cervical The Veteran asserts that his current spine condition is related to four injuries sustained during active service. Primarily, he contends he injured his back after telephone poles rolled off of a forklift and knocked him flat while in Vietnam. He alleges other injuries throughout service, including being kneed in the back "real good" during basic training, falling 20 feet during airborne school at Fort Campbell, and being electrocuted and falling eight feet on his back in Vietnam. For the reasons outlined below, the Board finds service connection for his spine condition is not warranted. As an initial matter, the Board notes the Veteran has a current spine disability. Specifically, at his August 2019 VA examination, he was diagnosed with degenerative arthritis of the lumbar and cervical spine, lumbar spinal stenosis and intervertebral disc syndrome. This satisfies the primary criterion of service connection for a spinal condition. Next, a review of the Veteran's service treatment records (STRs) indicates he was injured in Vietnam when telephone poles fell onto him. While an April 1969 treatment note confirms he was injured due to the incident, his injuries were abrasions to his leg and chest resulting in some tenderness. His STRs do not include any references to lumbar or cervical spine issues. Of note, at his April 1971 separation examination he answered "no" to ever having back trouble of any kind. Further, his separation examiner concluded he had "[n]o current medical problems" while marking his spine as "normal". The first post-service indication of a spine condition occurs in March 2016, when a VA treatment note confirms degenerative changes of the thoracic spine. Further, a November 2017 VA treatment note reveals low back pain, degenerative joint disease/osteoarthritis of the cervical and lumbar spine which was "persistent/ progressive". While the Veteran testified that his back pain has been continuous since service, his medical records indicate his spine disorders onset over 40 years after service. Furthermore, while the Veteran contends his back pain, a symptom of his spine condition, onset at various times during service and has continued since, the Board is, unfortunately, unable to grant service connection based on the Veteran's statement alone, as it is inconsistent with the other evidence of record. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). Despite his specific statements regarding the circumstances of his injury, the Veteran's testimony is inconsistent with the available evidence of record. Notably, there is no record of symptoms or treatment for a spine condition during Basic Training, Airborne School or in Vietnam. Moreover, his personnel records do not include an assignment to any Airborne School or Fort Benning during his enlistment. While the Board has a heightened duty to discuss all evidence favorable to the Veteran, the standard for establishing in-service symptoms is not lowered. See Russo v. Brown, 9 Vet. App. 46 (1996). Accordingly, the medical evidence shows that service connection is not warranted based on continuity of symptomatology. Finally, service connection may also be granted when the evidence establishes a medical nexus between active duty and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's spine condition to active service. Specifically, the Board places significant value on the opinion of a VA examiner who evaluated the Veteran's lumbar and cervical spine in August 2019. The Veteran underwent VA examinations for his lumbar and cervical spine in August 2019. Here, he reported the onset as April 1969 when telephone poles rolled onto him while serving in Vietnam. He stated his current symptoms were pain, numbness to extremities and headaches for which he takes over-the-counter medicine daily. After reviewing his records, to include his in-service treatment for the telephone pole incident, the examiner opined against service connection. In support, the examiner wrote that there were no notes of injury to the cervical or lumbar spine in-service. While he had been hit by telephone poles in Vietnam, the treatment note indicated he had leg pain and was returned to duty. In the examiner's view, there were no indications of a spine condition in the STRs. Further, the examiner wrote that the Veteran's separation examination was negative for any complaints or objective findings regarding his spine, and that there were no ongoing complaints until 40 years thereafter. While the examiner notes the Veteran's degenerative disc disease was likely caused by old thoracolumbar spine compression fractures, the examiner concludes there is no evidence of such fractures of the T7-12 and L1 in-service. Moreover, the examiner wrote that a "significant injury" was sustained to cause multiple compression fractures. However, no significant injury to the thoracolumbar spine was noted in the STRs. Altogether, according to the examiner, there is no indication that the Veteran's spine condition is related to his active-duty service. In arriving at these conclusions, the Board acknowledges the Veteran's statements relating his current spine condition to active service. Specifically, the Veteran asserts that his symptoms were related to injuries in Basic Training, Airborne School and Vietnam. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiologies of his spine disorder. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disability is not diagnosed by unique and readily identifiable features, it does not have a simple identification that a layperson is competent to make. The Veteran is not competent to identify a nexus between his disability and service. While the Board does not dispute the Veteran's credibility in describing his symptoms or the conditions of his service, the weight of the medical evidence is against a finding that they are etiologically related to his active service. Therefore, the Veteran's lay statements that his current spine condition is related to service are found to lack competency. In sum, the probative evidence of record is persuasively against a finding that the Veteran's spine condition is related to any event, injury or disease incurred in service. Based on the evidence of record, the Veteran's claim must be denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald