Citation Nr: 22017668 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-34 908A DATE: March 25, 2022 ORDER Entitlement to service connection for degenerative disc disease of the cervical spine is denied. Entitlement to service connection for degenerative disc disease of the thoracolumbar spine is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder is remanded. FINDINGS OF FACT 1. The persuasive weight of the evidence is against finding that the Veteran's degenerative disc disease of the cervical spine is related to service, to include his reported in-service fall. 2. The persuasive weight of the evidence is against finding that the Veteran's degenerative disc disease of the thoracolumbar spine is related to service, to include his reported in-service fall. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 1979 to September 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2018 and April 2021, and both times they were remanded for VA examinations. The Veteran testified before the undersigned Veterans Law Judge at a March 2018 videoconference hearing, and a transcript of this hearing is associated with the claims file. Service Connection Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Veteran is competent to report symptoms experienced. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not considered competent to medically attribute such symptoms to any particular disability because such are complicated medical issues that require medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006). 1. Entitlement to service connection for degenerative disc disease of the cervical spine is denied. 2. Entitlement to service connection for degenerative disc disease of the thoracolumbar spine is denied. The Veteran contends that his current degenerative disc disease of the cervical and thoracolumbar spine is due to an incident in service when he fell off the fender of a tank. The Veteran's service treatment records are silent with respect to any neck or back injuries during service or symptoms of neck and back pain, including his August 1980 separation examination. The Veteran's VA treatment records show he has current diagnoses of degenerative disc disease of the cervical and thoracolumbar spine. The Veteran's military personnel records note his military occupational specialty was that of tank driver. The Veteran was afforded VA examinations in October 2019, June 2021, and January 2022. The Board previously determined the October 2019 examination was inadequate in its April 2021 remand. In the June 2021 cervical and thoracolumbar spine examinations, the Veteran was noted as having degenerative disc disease of both the cervical and thoracolumbar spine. The Veteran reported that his neck and back conditions began during service in 1978 (erroneously noted as 1987 by the examiner) when he fell off of a tank and was unable to move for a few seconds. However, he did not seek medical attention because he was told he could not leave the exercise he was participating in at the time of the incident. Additionally, the examiner noted that the Veteran's earliest reports of back pain were in November 2009, while the earliest lumbar x-rays were from 2011-2012. At that initial 2009 visit, the Veteran reported having experienced back pain for a 3-month period about six years prior. The examiner opined that the Veteran's neck and back conditions were at least as likely as not related to his service. However, the examiner provided negative rationale, noting there were no reports of neck or back pain or injury in the Veteran's STRs. The examiner provided an addendum opinion in January 2022, clarifying that the Veteran's neck and back conditions were less likely than not related to his reported in-service fall. By way of rationale, the examiner stated that the Veteran made no complaints of neck or back pain in his record. Additionally, while the Veteran reported an in-service fall, the examiner said that "in order to professionally link current degeneration to service x-ray records, physician statements, and physical therapy notes would need to be available to link conditions." During the March 2018 hearing, the Veteran testified that while attempting to get into a tank, he slipped and fell off the tank and landed on his neck and back on the ground. After a couple of seconds, he regained his feeling and was able to get up. He reported the fall to his superior, who joked that the Veteran was trying to get out of his duties. The Veteran explained they were preparing for an exhibition and games with other bases, and thus he was told to return to his tank and continue his duties. Additionally, the Veteran stated that during the second day of the exhibition, the tank he was in flipped, and he was thrown around with the others in the tank. He also said he was left behind to stay with the tank for a week until the game was over. When he reported this to higher ups other than his immediate superior, they did not believe him. The Veteran stated that he continued to experience neck and back pain after his fall and continues to experience pain to this day. After reviewing the record, the Board finds the persuasive weight of the evidence is against service connection for degenerative disc disease of the cervical and thoracolumbar spine. The Board finds the June 2021 examination to be inadequate because of the disconnect between the check box indicating the Veteran's neck and back conditions were at least as likely as not related to service and the negative rationale provided. Additionally, even when correcting for this mistake, the examiner erroneously relied solely on the lack of documentation of a neck or back injury in the Veteran's STRs. An examiner cannot ignore the Veteran's lay statements of an in-service injury or event and symptoms suffered after the event. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Board finds the January 2022 examination to be of significant probative value. The examiner addresses the Veteran's reported in-service fall and resulting neck and back injury. However, they ultimately concluded that without additional documentation between the time of the Veteran's injury in 1978 until the earliest treatment note in 2009, they cannot establish a causal relationship between the Veteran's in-service fall and his current neck and back conditions. Regarding the time between the Veteran's in-service fall and the earliest report of treatment, the Board notes over 30 years passed between the Veteran's fall in 1978 and his earliest treatment note in November 2009. Even when accounting for the Veteran's statement at that initial November 2009 treatment that he experienced neck and back pain six years prior, the earliest experience of neck and back pain would thus have been in 2003, 25 years after he separated from service. Additionally, while the Board understands the Veteran was unable to seek treatment immediately following his in-service fall, the fact remains that he did not report any neck and back injuries or pain during his August 1980 separation examination or at any other time during service. When combined with the 25-year gap between the Veteran's in-service fall and his first report of neck and back pain, the Board finds this evidence further supports the January 2022 examiner's negative medical opinion. The Board acknowledges the Veteran is competent to report symptoms, injuries, or other events during and since active service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not considered competent to medically attribute such symptoms to any particular disability because such is a complicated medical issue that requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006). Accordingly, the Board finds that the Veteran's degenerative disc disease of the cervical and thoracolumbar spine is less likely than not related to his service. As the persuasive weight of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims for entitlement to service connection for degenerative disc disease of the cervical and thoracolumbar spine must be denied. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to service connection for a gastrointestinal disorder is remanded. The Veteran contends that his gastrointestinal issues, to include esophageal and colon polyps, are due to his service, to include exposure to depleted uranium munitions as a part of his duties as a tank driver. The Veteran was afforded VA examinations in October 2019, June 2021, and January 2022. The Board previously found the October 2019 examination to be inadequate in its April 2021 decision. In the June 2021 examination, the examiner noted the Veteran had diagnoses of diverticulitis and colon polyps. The Veteran reported that his condition began during service in 1978 (erroneously noted as 1987), when he started experiencing symptoms of difficulty eating, acid reflux, nausea, vomiting, and indigestion. He also reported that at that time, he was able to take over-the-counter medications to control these symptoms. The examiner opined that the Veteran's gastrointestinal conditions were at least as likely as not related to his service. However, the examiner provided negative rationale, noting the Veteran experienced abdominal pain for two days during service, at which time he was given mylanta. However, there were no other mentions of gastrointestinal problems, medications, or distress in his service records. In the January 2022 addendum opinion, the examiner stated the Veteran only had one report of abdominal pain during service. However, the examiner explained that diverticulitis is marked by symptoms of persistent abdominal pain. Additionally, colon polyps are typically asymptomatic unless they are bleeding, but the Veteran's service treatment records were silent in this regard. As such, the examiner found the Veteran's abdominal symptoms during service could not be attributed to colon polyps. Throughout the appeal period, the Veteran raised the theory that his gastrointestinal conditions are related to his exposure to depleted uranium munitions as a part of his duties as a tank driver. In support of this theory, the Veteran submitted an article in April 2014 that suggested a link between exposure to depleted uranium and stomach issues, including damage to the stomach. The Board finds both the June 2021 and January 2022 examinations to be inadequate. In the June 2021 examination, even after correcting for the incorrectly marked check box, the examiner failed to provide an adequate rationale to support a negative nexus opinion. Instead, the examiner relied solely on a single report of abdominal pain during service, disregarding the Veteran's lay statements about his symptoms. An examiner cannot ignore the Veteran's lay statements of an in-service injury or event and symptoms suffered after the event. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Additionally, in both the June 2021 and January 2022 examinations, the examiner failed to opine on whether the Veteran's gastrointestinal issues could be related to exposure to depleted uranium munitions, which he reported experiencing as a part of his duties as a tank driver. Furthermore, both examinations noted only one report of abdominal pain in the Veteran's STRs; however, there are three instances of gastrointestinal-related symptoms in June 1979, July 1979, and April 1980. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate exam. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand is necessary in order to obtain an addendum opinion addressing the aforementioned evidence. Accordingly, this matter is REMANDED for the following action: 1. Obtain an addendum opinion from the January 2022 examiner, or other qualified examiner if the January 2022 examiner is unavailable, addressing the nature and etiology of the Veteran's current gastrointestinal conditions. The examiner is asked to address the following: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's gastrointestinal conditions, to include diverticulitis and colon polyps, are related to service, to include exposure to depleted uranium munitions. The examiner is to address the STR treatment notes from June 1979, July 1979, and April 1980. Additionally, the examiner is to address the article submitted by the Veteran in April 2014 concerning depleted uranium exposure. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.