Citation Nr: 22048624 Decision Date: 08/25/22 Archive Date: 08/25/22 DOCKET NO. 18-31 243 DATE: August 25, 2022 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a thoracic spine disability is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disability is not related to active service. 2. Arthritis of the cervical spine was not present within the first post-service year. 3. The Veteran's thoracic spine disability is not related to active service. 4. Arthritis of the thoracic spine was not present within the first post-service year. CONCLUSIONS OF LAW 1. The criteria for 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 service connection for a thoracic 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 January 2000 to January 2004. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at the Board of Veterans' Appeals (Board) in October 2021. A transcript of the hearing is of record. The Board remanded the appealed claims in February 2022 for additional development; the claims now return to the Board for further review. Service Connection 1. Entitlement to service connection for a cervical spine disability 2. Entitlement to service connection for a thoracic spine disability The Veteran contends that he suffers from cervical and thoracic spine disabilities due to an automobile accident in service in August 2003. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases, such as arthritis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as 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, 1112, 1113, 1137; 38 C.F.R. § § 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-rule does not apply. Id.; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran has submitted a copy of a police citation from his automobile accident in August 2003, which includes a brief report of the single-vehicle accident, indicating that the 1998 Dodge vehicle which the Veteran was driving suffered an estimated $25,000.00 in damage, but not indicating that anyone was hurt in the accident. Service records do not include any record of treatment for a neck or back condition, and the Veteran's service separation examination in October 2003 noted a normal spine. An associated report of medical history indicated that the Veteran had no history of recurrent back pain. At his October 2021 hearing before the undersigned, the Veteran testified that he began experiencing symptoms in 2009, when he was exercising at work, and that these symptoms which began with "pins and needles" sensations in 2009 had over time become more severe. (Hearing transcript (Ht), pg. 4.) He added regarding onset of these symptoms that "something happened to my back when I was just doing pushups." (Ht, pg. 5.) The Veteran submitted a September 2021 letter from a treating chiropractor, J.C., who opined that the Veteran's cervical and thoracic spine changes were attributable to his automobile accident in 2003. However, in the letter, J.C. explains that the changes observed are consistent with "significant trauma" followed by subsequent degenerative changes, rather than due only to degenerative changes over time. At his hearing, the Veteran testified that when he had the automobile accident in service in 2003, the Sergeant came to pick him up and he (the Veteran) then went back to work that day rather than seeking treatment. (Ht, pg. 3.) The Veteran testified to not receiving treatment until after he first began experiencing symptoms in 2009, hence approximately six years after the accident. (Ht., pg. 7.) Thus, the Veteran's self-reported history and the documentary record from the automobile accident in August 2003 does not support that the Veteran suffered significant trauma during that accident. Additionally, in the September 2021 opinion letter this chiropractor fails to address the absence of any apparent symptoms of significant injury or need for medical care immediately following the 2003 automobile accident, and fails to address the gap of approximately six years between the 2003 accident and reported onset of symptoms and initiation of care. Ultimately, including based on VA examiner opinion, discussed below, to the effect that damage to the Veteran's spine from that accident is not supported by the evidence, the Board concludes that the medical opinion of J.C. is not probative because it is based on the inaccurate factual premise, unsupported by the evidentiary record, that the Veteran suffered significant trauma in the August 2003 accident. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). VA treatment records reflect regular health screenings and treatment beginning in service in 2004. These records reflect no complaint, symptoms, findings, diagnosis, or treatment for any cervical or thoracic disability in service or for years following service. An October 2007 treatment included a complaint of low back and left leg pain, but no record of follow-up ongoing symptoms or care. An August 2016 note included a request for consultation for upper back pain. An August 2016 treatment for reported chronic upper and mid back pain included a report of no recent injury but a history of an automobile accident in 2013. August 2016 cervical x-rays showed no evidence of fracture or subluxation, mild to moderate multilevel degenerative disc disease with associated degenerative joint disease, and mild bilateral C5-C6 neural foraminal stenosis; the reviewing physician assessed "old compression deformity noted of old injury." August 2016 treatment records reflects that the Veteran then expressed his desire to file for disability benefits based on an accident 12 years ago in service. At a July 2017 treatment, the Veteran reported a history of back injury in an automobile accident in service in 2003. At a November 2018 treatment, the Veteran reported chronic back pain since the military. At a December 2019 treatment, the Veteran reported that he was in a car accident a few months ago and sustained a back injury, following which he completed physical therapy was now seeing a chiropractor. Added to the claims file in May 2022 are records of treatment by chiropractor A.B, of the North Georgia Spine Center. At visits from 2019 to 2021, the chiropractor noted conditions including poor posture, degenerative joint disease, and chronic pain, but characterized the Veteran's conditions as "from military service" or "directly related to his military service." At an April 2021 treatment for cervical spine pain which reportedly began after a five-mile run a week prior, the examiner added, "All injuries are directly related to his military service." However, A.B. provided no rationale to support these opinions of links to service, whether associated with "all injuries" or only conditions of the cervical or thoracic spine, and hence these opinions are not considered supportive of a link to service for any cervical or thoracic spine disability, due to absence of supporting rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Private treatment records by chiropractor J.P. submitted into the record in May 2022 include records of treatment in 2020 for symptomatic spinal issues. A January 2022 visit assessed "segmental dysfunction" at spinal segments "C1, C2, C3, C4, C5, C6, T3, T4, T5, T7, T2, T1, T6, L2, L4, L5, L3, Sacrum necessitating adjusting at those levels." In September 2021, the same chiropractor J.P. provided an opinion that the Veteran's conditions including the cervical moderate degenerative changes, C5/C6 anterior osteophyte formation, abnormal endplate deformities, loss of cervical height, and loss of intervertebral disc height were the result of the Veteran's in-service automobile accident, explaining that the Veteran's "symptoms were consistent with his injuries sustained during his 2003 motor vehicle accident." The examiner added, "These degenerative changes in his cervical spine take both significant trauma and time to advance to his level of degeneration." Upon considering the Veteran's symptomatic conditions of the cervical, thoracic, and lumbar spine, the examiner attributed the Veteran's condition as "a direct result of his auto accident while in military service." However, like chiropractors J.C. and A.B., chiropractor J.P. relied for these opinions on the supposition that the Veteran suffered "significant trauma" impacting the cervical, thoracic, and lumbar spine in his August 2003 automobile accident. Because the evidence does not reflect that the Veteran suffered significant spine trauma from the August 2003 automobile accident, the Board concludes that these opinions are also not probative as based on an inaccurate factual premise. Reonal, 5 Vet. App. at 461; Monzingo, 26 Vet. App. at 107. Upon VA examination in June 2022, the examiner reviewed the record including service and post-service records, hearing notes, and submitted private opinion evidence. The examiner reviewed the Veteran's own testimony and records from service reflected that the Veteran returned to duty following his automobile accident in August 2003, with no evidence that the Veteran was injured in the accident. The examiner noted the Veteran's self-report that his first symptoms began with "pins and needles" sensation in 2009, with subsequent increase in severity of symptoms. The examiner also noted the private chiropractors' positive nexus opinion being based on "significant trauma" having been suffered in service. Also reviewed by the June 2022 examiner were the above-noted August 2016 VA cervical and thoracic x-rays, as well as lumbar x-rays. Lumbar spine x-rays revealed no evidence of acute traumatic injury and mild to moderate multi-level degenerative disc disease at the lower thoracic and upper lumbar spine with minimal retrolisthesis of L1 on L2. The June 2022 examiner noted that the Veteran reported that he had been seen by ambulance personnel at the accident who recommended that he go to the hospital, but that he instead returned to full duty. The Veteran added that he did not seek medical attention while enlisted. The June 2022 examiner interpreted this history as reflecting that the condition at the time of the August 2003 accident was "acute and transitory and not significant enough to mandate medical attention." The examiner further interpreted that the subsequent normal service examination in October 2003 supported the conclusion that the accident was an "acute and transitory event." The examiner further noted that there was no evidence of the Veteran seeking medical attention within the first year following service, and no evidence of pertinent treatment continuing from service to the present, with the Veteran conceding that he did not seek medical attention for his back until about 2016, several years after service. The examiner interpreted this interval without seeking care as, in effect, diminishing the likelihood of any link between claimed spine disability and service. The examiner concluded that the evidence of record surrounding the August 2003 accident and record of treatment thereafter did not support "significant trauma" having been suffered in the August 2003 automobile accident. The examiner also noted that the private chiropractors who provided the positive nexus opinions had not seen the Veteran until many years following service. On these bases, the June 2022 examiner opined that it was not at least as likely as not that the Veteran's cervical and thoracic spine disabilities were incurred in service or causally related to an injury, event, or illness in service. Upon careful review of the record, the Board concludes that the evidence is persuasively against the Veteran's cervical and thoracic spine disabilities having developed in service or otherwise being causally related to service, including related the August 2003 in-service automobile accident. The service records including records of the accident and separation examination, absence of symptoms or treatment until multiple years post service, and the Veteran's own testimony regarding returning to duty following the accident and onset of symptoms years following service are all persuasively supportive of the VA examiner's conclusions that the Veteran's current claimed disabilities are not due to his August 2003 automobile accident. VA treatment records beginning in service and continuing thereafter also show no cervical or thoracic symptoms or findings for years following service. As noted, the private chiropractor opinions rely on the supposition of significant trauma in the August 2003 in-service automobile accident, which is simply not supported by the evidence. The Board also accordingly concludes, in the absence of supportive evidence, that the evidence is persuasively against arthritis of the cervical or thoracic spine being present within the first post-service year. The Board does not question the Veteran's belief that his current disabilities of the cervical and thoracic spine are related to his in-service automobile accident in August 2003. However, the Veteran, as a layperson, is without the expertise needed to address such questions of etiology of disabilities of the spine where, as here, such questions is beyond lay competence. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Accordingly, the Board concludes that the evidence is persuasively against the claims for service connection for cervical and thoracic spine disabilities on direct and first-year-post-service presumptive bases, and hence, service connection is not warranted for either disability on these bases. 38 C.F.R. §§ 3.303, 3.307, 3.309. (Continued on the next page) Because the evidence is persuasively against the claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, supra. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.