Citation Nr: 25001047 Decision Date: 01/27/25 Archive Date: 01/27/25 DOCKET NO. 17-49 624 DATE: January 27, 2025 ORDER Entitlement to service connection for a thoracolumbar spine disability is denied. FINDING OF FACT The weight of the evidence is against a finding that any thoracolumbar spine disability is etiologically related to, or the result of, active service, to include as incurred during service, or secondary to or aggravated by the service-connected disabilities, to include posttraumatic stress disorder (PTSD) and headaches. The weight of the evidence shows the Veteran's thoracolumbar spine disability to be related to post-service occupational use and injury. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine disability due to service or posttraumatic stress disorder or headaches are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which is the Agency of Original Jurisdiction (AOJ). In June 2023, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript has been associated with the claims file. In April 2019 and September 2023, this matter was remanded for additional development by the AOJ. Most recently, in September 2023, the Board remanded the matter to obtain outstanding medical records and to obtain a VA examination and medical opinion. In January 2024, the AOJ contacted the Veteran to request details regarding any outstanding medical records. In January 2024 and at other times, additional VA Medical Center records were associated with the claims file. In May 2024, the requested VA examination was conducted. In September 2024, the May 2024 examination report and medical opinions were associated with the claims file. In October and December 2024, medical opinion addenda were associated with the claims file. Therefore, the Board finds that there has been substantial compliance with the September 2023 remand requests. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a thoracolumbar spine disability. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the weight of the evidence must be against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, every piece of evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that a thoracolumbar spine disability was caused by, resulted from, or is otherwise etiologically related to service, and therefore service-connection is warranted. At an October 1969 entrance examination, the Veteran denied having worn a back brace or back support, arthritis or rheumatism, lameness, recurrent back pain, or bone, joint or other deformity. The Veteran's spine was found to be normal on examination. January 1971 service medical records note that the Veteran reported being hit by military police and was diagnosed with an upper lip laceration. The wound was cleaned and treated. June 1971 service medical records note that the Veteran reported being hit on the head by a pack, with pain radiating from the middle of the back up through the neck to the forehead. At a November 1971 separation examination, the Veteran's spine was found to be normal and no complaints of back pain or other issues were noted. At a February 1989 VA examination, the Veteran reported falling on the back in service and experiencing constant back pain. The examiner noted paravertebral and vertebral tenderness over the lumbarspinous region. September 1990 private medical records note that the Veteran was a hard working individual and had been a brick mason for 17 years. The Veteran was injured on the job on May 8, 1990, after falling backwards approximately 8 feet while laying some blocks after tripping and falling over a stack of concrete blocks. Imaging showed an L4-L5 herniated disc and some mild narrowing of the L4-L5 disc, and fusion at the L4-L5 level was recommended. May 1991 private medical records note that the Veteran had fallen off a scaffold at work in May 1990 and had undergone spinal fusion surgery. April 1992 private medical records from an orthopedic specialist note that the Veteran reported becoming injured after falling off a scaffold on May 8, 1990, and developed low back and lower extremity pain. At an August 2003 VA examination for headaches, the Veteran wanted to inform the examiner that in 1990 the fall off the scaffold was due to getting a headache, getting dizzy and then falling off the scaffold. March 2010 VA Medical Center records note that, at a psychotherapy appointment, the Veteran reported injuring the back rappelling off a mountain during service. In a February 2010 private medical opinion, a clinical psychologist reported treating the Veteran for PTSD, headaches related to closed head injuries, a cervical disc condition, chronic low back pain, generalized anxiety disorder, recurrent major depression and panic attacks, and mood disorder "due to general medical condition since November 24, 2009." The examiner provided a positive medical opinion stating that it was at least as likely as not that the Veteran's condition was related to service. The document does not indicate to what condition or disability the opinion refers. September 2010 VA Medical Center records note that the Veteran reported being hit in the head by a falling pack on June 18, 1971, which caused radiating pain up the back through the neck to the forehead. December 2013 private medical records note that the Veteran reported chronic lower back and left upper extremity pain. At a May 2024 VA examination, the Veteran was diagnosed with degenerative disc disease other than intervertebral disc syndrome. The Veteran reported falling on the back in a 1970 altercation with military police, casing low back pain. The Veteran reported being hit by a falling locker in June 1971 which worsened back pain. The examiner noted that the Veteran had a normal examination in November 1971 and in February 1989 back x-rays were normal. The Veteran reported falling while working as a bricklayer and being diagnosed with pseudoarthritis of L4-L5 in 1992. The examiner noted the Veteran's reports of ongoing pain since service. The May 2024 VA examiner provided medical opinions and addenda. In one medical opinion, the May 2024 VA examiner opined that the Veteran's thoracolumbar spine disability was at least as likely as not due to service, noting various injuries including the September 1990 injury. The Board notes that it appears that the examiner based that opinion on the incorrect assumption that the Veteran was still on active duty service in 1990 at the time of that accident. In a second medical opinion, the examiner noted the history of the Veteran's thoracolumbar spine disability, including the February 1989 finding of tenderness and an x-ray showing a normal spine. The examiner also noted the Veteran's separation examination did not document any complaints issues with the thoracolumbar spine and that the Veteran's back was found to be normal during that examination, implying that any service injury had resolved by separation. The examiner noted that the first objective findings of back symptoms was in February 1989, approximately18 years after separation, although x-rays showed a normal spine at that time. The examiner opined that the Veteran's thoracolumbar spine disability was more likely related to years working as a brick mason after surgery with traumatic injuries, such as the 1990 fall injury. The May 2024 examiner noted that posttraumatic stress disorder (PTSD) and headaches were not an etiological risk factor for degenerative disk disease, while age, injuries, and genetics were. The examiner also noted that there was no known causational link between the Veteran's thoracolumbar spine disability and service-connected PTSD and headaches, and opined that the thoracolumbar spine disability was therefore less likely than not proximately due to or the result of the Veteran's service-connected disabilities, again attributing the current disability to the post-service occupation as a brick mason and injuries incurred working as a brick mason. The May 2024 examiner also opined that the Veteran's thoracolumbar spine disability was less likely than not aggravated by service-connected disabilities, including PTSD and headaches. The examiner found that it was not possible to determine a baseline of severity for the disability and that regardless of any baseline that the thoracolumbar spine disability was not at least as likely as not aggravated beyond its natural progression by a headache disability and PTSD. The examiner had noted that there was no etiological link between degenerative disc disease and PTSD and/or headaches. The Board finds that the weight of the evidence is against a finding that the Veteran's thoracolumbar spine disability was caused by or the result of active duty service, to include as incurred in service, secondary to, or aggravated by service-connected disabilities including PTSD and headaches. The Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board notes that one of the May 2024 VA examiner's opinions linking the Veteran's thoracolumbar spine disability to service conflicts directly with the others and is based on the inaccurate factual premise that the Veteran's years working as a brick mason and occupational injuries were during a period of active duty service. The Board assigns that particular opinion little probative weight. The Board finds the May 2024 VA examiner's medical opinions, except the one based on an inaccurate factual premise, competent, credible, persuasive, and complete, especially when taken together. Those opinions are highly probative as they are provided by a trained medical professional and supported by the medical evidence of record, the Veteran's lay statements, occupational history, and detailed rationale. The May 2024 VA examiner noted that the Veteran did not report back issues at the separation examination, and the thoracolumbar spine was found to be normal at that same examination. The examiner concluded that the Veteran's thoracolumbar spine disability was the result of years of post-service work as a brick mason and related occupational injuries rather than incurred in, caused by, or otherwise etiologically related to service or any event, disease, or injury in service. The Board assigns the February 2010 private medical opinion from the Veteran's psychologist little probative weight as no rationale was provided and the opinion does not even clearly indicate which disabilities it opines were related to service. The Board acknowledges the Veteran's assertion that a thoracolumbar spine disability began in service and continued on after separation, or that a back disability is otherwise etiologically related to service. However, the competent medical opinions are against a finding of an etiological relationship between a thoracolumbar spine disability and active service or a service-connected disability. The Board finds that the Veteran, as a lay person without the appropriate medical training and expertise in diagnosing and treating orthopedic disabilities, is not competent to provide a probative opinion as to whether any disability was either caused or aggravated beyond the natural progression by any incident of active service, or by any service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any disability. The Veteran is not competent to provide a diagnosis of a specific disability, or to the etiology of any disability as those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education, and experience, in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also acknowledges the Veteran's lay statements that symptoms began in service and continued after separation, and the August 2003 statement that the 1990 occupational injury occurred because of headaches. However, in a November 1971 separation examination, the Veteran's spine was found to be normal, and the evidence does not show that the Veteran reported ongoing or chronic symptoms. Additionally, in September 1990 the Veteran reported the fall at work was caused by tripping over an unseen pile of concrete blocks, and did not mention headaches as causing or otherwise contributing to the fall, and the lay statement attributing the fall to a headache disability was made over a decade later and further removed from the actual event. The Board finds the contemporary account of the causation of the fall to be more persuasive, and the finds that contradictory nature of later contentions to be less persuasive. The May 2024 VA examiner reviewed and considered all evidence, including the Veteran's lay statements and reported history of the disability and evidence showing tenderness to palpation but a normal spine x-ray in 1989, and concluded that the current thoracolumbar spine disability arose during post-service work and work-related injury, and was less likely than not related to service. The Board does not categorically assign the objective evidence more evidence than the Veteran's lay statements or question the Veteran's credibility. but notes that in this case due to inconsistencies with past statements and other evidence, the Board assigns the Veteran's later lay statements less probative weight. The Board finds that weight of the evidence is against a finding that the Veteran's thoracolumbar spine disability was incurred in, caused by, or is otherwise related to service or any event, disease, or injury in service to include as caused by or aggravated by service-connected disabilities. Accordingly, after a careful review of the evidence of record, the Board finds that the weight of the evidence is against the claim and against a finding that the Veteran's thoracolumbar spine disability is related to or aggravated by service or a service-connected disability to include PTSD and headaches. The most persuasive evidence of record does not support that contention. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, the Board finds that the evidence is not in relative equipoise and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the Board finds that the weight of the persuasive evidence is against the claim of entitlement to service connection for a thoracolumbar spine disability, and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hood, 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.