Citation Nr: 23023903 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 14-15 526 DATE: April 25, 2023 ORDER Entitlement to service connection for residuals of a spinal cord injury is denied. FINDING OF FACT The Veteran has not been shown to have residuals of a spinal cord injury that manifested in service or within one year thereafter or that are otherwise related to his military service. CONCLUSION OF LAW Residuals of a spinal cord injury were not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2017. A transcript is of record. In January 2018 and September 2021, the Board remanded the case for further development. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). 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 arthritis is a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for residuals of a spinal cord injury. The Veteran has claimed that he injured his spinal cord during a motor vehicle accident while serving in the Republic of Vietnam in approximately June 1971. See, e.g., March 2012 correspondence; September 2017 hearing transcript. The Veteran's service personnel records include a May 1971 record of Article 15 proceedings that show he received nonjudicial punishment for operating a five-ton truck in a reckless manner in Cam Ranh Bay, Vietnam. However, the record did not reference a motor vehicle accident or injury. Moreover, the Veteran has asserted that the May 1971 incident occurred one month prior to his motor vehicle accident. See July 2021 appellate brief. The agency of original jurisdiction (AOJ) attempted to verify the Veteran's reported motor vehicle accident and injury. After comprehensive research, including by the Military Records Research Center and the National Archives and Records Administration, no evidence was located to support documentation of the claimed motor vehicle accident and spinal cord injury. See November 2022 Records Research Response. The service treatment records are also negative for any complaints, diagnosis, or treatment of a spinal cord injury. A June 1971 service treatment record documents complaints of a bruise on the inside of his right thigh, which he hurt by moving equipment; however, there was no documentation of a motor vehicle accident or spinal cord injury at that time. In addition, an October 1971 separation examination found his neck, spine, and musculoskeletal system to be normal, which is affirmative evidence showing that he did not have residuals of a spinal cord injury at time of separation from service (rather than a mere absence of treatment or documentation). The Veteran also described his condition as "good" at that time and indicated that his condition had not changed since his last physical examination. The Board notes that neither arthritis nor manifestations sufficient to identify the disease entity are shown during service. The pertinent regulations require that manifestations are "noted" in the service records and that is not the case in this instance. Therefore, while arthritis is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations were shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and arthritis may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no objective x-ray evidence of arthritis within one year after the Veteran's separation from service. In fact, there is no medical evidence pertaining to a spine disorder for many years thereafter. There is no record of any treatment for neck problems until 2007, and the Veteran told the August 2019 examiner that he has had chronic neck pain since approximately 2010. In addition to the lack of evidence showing that the claimed disorder manifested during active service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. A June 2019 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that the Veteran's service treatment records do not document a cervical spine or spinal cord injury. He also stated that the Veteran's "medical records do not support that any currently diagnosed condition(s) related to the veteran's claimed spinal cord injury to include residuals." A January 2023 VA examiner diagnosed the Veteran with degenerative disc disease other than intervertebral disc disease, spinal stenosis, and central disc herniation with spinal cord compression. She acknowledged his report that he injured his neck when he jumped out of a five-ton truck in Vietnam in 1971; however, she found that there was no evidence that he had an actual injury to the cervical cord. The examiner explained that the degeneration of the cervical spine led to a cascade of changes in the surrounding structure including, cervical degenerative disc disease, stenosis, protrusion, and spinal cord compression. She also stated that there is no pathology to render a diagnosis for a spinal cord injury and commented that a spinal cord compression is not the equivalent to a spinal cord injury. In this regard, she explained that a spinal cord injury would have had acute life threatening symptoms, including acute paralysis, respiratory compromise, and emergency surgical treatment in a lifesaving procedure, which did not occur in this case. There were also no neurological symptoms reported in 1971. The examiner further indicated that the symptoms of the current disorders were not evident until 2007 when the Veteran started to complain about numbness and tingling in his hand and an evaluation at time included a MRI of the cervical spine. The examiner concluded that the current disorders were less likely than not incurred in or caused by the claimed in-service injury or event, or causally or etiologically related to the Veteran's military service, including any injury therein. There is no medical opinion otherwise relating a current disorder to the Veteran's military service. The Board acknowledges the Veteran's lay statements that his current disorder is related to a spinal cord injury in service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the disorder, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to opine on this matter, the Board finds that the opinion of the January 2023 VA examiner has greater probative weight than the more general lay assertions in this regard. The VA examiner has training, knowledge, and expertise on which she relied to form the opinion, and she considered the complete and accurate factual premise and provided rationale for the conclusions reached. The Board also acknowledges the Veteran's statements during the September 2017 hearing regarding field medicine in Vietnam being the reason for no documentation of his injury. He stated that, unless someone sustained a serious injury such as a lost limb or bullet wound, they would patch him up and send him back out into the field. However, his testimony contradicts his report to the June 2019 VA examiner that, following the alleged injury, he was lying face down, unable to move, and had to be picked up and taken to base where he was medically evaluated. A December 2012 medical record also shows that the Veteran indicated that he had to jump out of a truck during an accident, landed on his back, and was taken to a field medical unit, and a May 2013 medical record documents his report of being involved in a motor vehicle accident in which his truck jack-knifed and that another servicemember found him and got him medical aid. Thus, his reports regarding treatment have varied, and on at least one occasion, the Veteran stated that he was medically evaluated at a base. Moreover, the Veteran asserted during the September 2017 hearing that the June 1971 service treatment record documented the accident and spinal cord injury. However, as previously noted, the record documented complaints of a bruise on the inside of his right thigh, which he hurt by moving equipment, without any reference or mention of a motor vehicle accident or spinal cord injury at that time. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Indeed, the January 2023 examiner explained that, if the Veteran had sustained a spinal cord injury, he would have had acute life-threatening symptoms, including paralysis and respiratory compromise, and emergency surgical treatment, which is not shown in this case. For these reasons, the Board finds that reported history regarding the injury in service to be not reliable or credible. Based on the foregoing, the evidence does not show that residuals of a spinal cord injury manifested in service or are otherwise related to the Veteran's military service. Therefore, the Board concludes that the persuasive weight of the evidence is against the claim. As such, the benefit-of-the-doubt rule does not apply, and the appeal is denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.