Citation Nr: 25009200 Decision Date: 07/15/25 Archive Date: 07/15/25 DOCKET NO. 11-32 965 DATE: July 15, 2025 ORDER Entitlement to service connection for a spine disability is denied. FINDING OF FACT The evidence is not in approximate balance but is persuasively weighted against finding that a spine disability first manifested in a qualifying chronic disability within a year of service or is causally related to service. CONCLUSION OF LAW The criteria for service connection for a spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran who served on active duty from May 1953 to April 1955. The appellant was recognized as a substitute in a December 2024 notification letter. The appellant is the daughter of the Veteran and was only recognized as a substitute insofar as a person who paid the last expenses for Veteran. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 Department of Veterans Affairs (VA) rating decision. In March 2012 October 2012, April 2013, and January 2014, the Board remanded the case to the Regional Office (RO) for additional development. A July 2014 Board decision denied service connection for a spine disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In July 2015, the CAVC granted a Joint Motion for Remand (JMR) by the parties, thereby vacating the Board's decision and remanding the matter to the Board for action consistent with the JMR. In October 2015, February 2018, November 2019, February 2020, and July 2020, the matter was remanded to the RO for development. The November 2020 Board decision again denied service connection. The Veteran again appealed that decision to the CAVC and in September 2021 they granted a JMR thereby vacating the Board's decision and remanding the matter to the Board for action consistent with the JMR. This matter was again remanded by the Board in October 2022. The Board finds that there has been substantial compliance with those remand directives. After that development was completed, the claim was denied in a May 2023 Board decision. In January 2025 the CAVC again granted a JMR vacating the May 2023 Board decision and remanding this claim to the Board. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. The Veteran did not respond to the request nor submit the private treatment records requested or VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection for a spine disability Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Factual Background The Veteran contends that he injured his back during training at Camp Rucker while carrying a rucksack and was "medevac'd" from the training area for treatment. In one April 2013 statement he indicated that his service treatment records (STRs) show his back injury was severe enough to warrant a helicopter evacuation. He claims that he has had continuous and worsening problems with his back from when he left service until the present, and that he self-treated the condition for many years until the pain became unbearable and he sought VA medical assistance. He asserted in a November 2012 statement that he did not sustain an injury in a diving accident, which he said was recorded in his records when he reported it to the doctor as he attempted to compare it to the pain from his back injury in service when he bumped his head and was knocked unconscious during the training accident. He maintains that his kidney condition did not cause his back disability that began at Camp Rucker. In an April 2012 statement, he explained that while wearing a rucksack and running in a training exercise, he slipped and fell into a ditch, striking his upper back and neck region and causing him to pass out. He stated he was taken "via ambulance" to a Fort Benning hospital, where he remained for several days before he was sent back to Camp Rucker. He stated he was treated and given pain pills for his back/neck, and was placed on a physical profile, until he completed the training period. He stated he was thereafter posted to Seattle and then to Japan where he served from 1954 to 1955. He asserted that several times after the accident, he went to sick call with complaints of upper back/neck pain and was given pills. He said he consistently objected when he was advised the pain was due to his abnormal kidneys. In a recent statement in November 2020, he asserted that his back disabilities related to his injury in December 1954 and not to kidney problems in February 1953, and that the time gap where there were no treatment records in the file was explained by the fact that he self-treated his condition. In another November 2020 statement, he indicated that he self-treated after his release from the hospital in December 1954 and did not complain of ongoing pain after that period including on his separation physical examination because he wanted to avoid scrutiny from his superiors and believed any complaints would hinder his ability to obtain a civilian job to provide for his family after service. He asserted that his neck and back condition continued to worsen after discharge but that he self-medicated with over-the-counter medicine and occasional use of a neck and back support brace. It was not until he could no longer bear the pain that he sought VA assistance, whereupon a back condition was officially diagnosed in 1995. A September 2020 VA consulting physician determined that the symptoms of back pain before the documented 1954 injury were due to pyuria and/or a congenital horseshoe kidney, and that any back pain from the 1954 injury was a manifestation of a non-specific acute back injury that resolved with treatment prior to separation from service. She noted that degenerative processes involving the lumbar, thoracic, and cervical spine were not identified for 40 years after discharge and opined that they were consistent with disorders of the back due to aging and wear and tear in the decades after service, and not related to his time in service or to any event in service. Indeed, as to cervical degenerative arthritis, she stated it was "not technically a 'back' disorder" and noted that STRs do not refer to a neck injury. In the September 2020 opinion, the consulting provider specifically considered the Veteran's claims of back/neck pain since his 1954 injury in service, finding that while they may be credible, they were not "definitively relevant to [his] confirmed back and neck diagnoses as of 2020." She explained that reports of pain are subjective and non-specific and cannot be "definitively or loosely [emphasis added] associated with a given disability without objective clinical evaluations; thus, as the Veteran may have experienced neck and/or back pain in service and in the years immediately following service, it was not possible to ascertain, at present without any reference to clinical evaluations, the actual etiology for any neck or back pain prior to 1995. She stated that the Veteran's clinically confirmed over 40 years after service cervical and thoracolumbar degeneration began at some date prior to the date of confirmation, but that the onset date could not be established without a clinical assessment. She further observed that prior to its confirmed association with degeneration the neck and back pain could have been due to other conditions and that the exact origins of the neck and back pain prior to 1995 could not be determined without resort to mere speculation. Another VA examination was conducted in June 2022 and VA medical opinions were obtained in June 2022 and August 2022. The physician's assistant noted in August 2022 opinion that she was not an orthopedic specialist, but rather worked in family practice and was credentialed to perform back and neck examinations. The Board therefore again remanded the matter in the October 2022. A November 2022 VA medical opinion was again obtained from a physician's assistant which determined that it is at least as likely as not that the Veteran's spine disabilities were incurred or caused by back pain during service. The clinician noted that the medical records don't show neck or back problems during service but that the Veteran is competent to recall when his pain started. They noted that the Veteran eventually underwent a cervical laminectomy in 2002 and 2007 and June 2010 x-rays show degenerative disc disease and joint disease. Further, there are two positive nexus statements associating current spine disability with the Veteran's service of record written by private providers. Because this opinion was again obtained from a physician's assistant the regional office conducted additional development and obtained a January 2023 opinion from a physician with a specialty in orthopedics and orthopedic surgery. The examiner explained that the documentation within the Veteran's service consists only of a single notation of "evac from training because of back injury" in December 1954. More recent statements by the Veteran have provided a variety of reported injury mechanisms for his back, including a slip and fall while carrying a ruck sack which in some reports of his history included a loss of consciousness, followed by evacuation to Fort Benning. Some reports also include falling down a hill as part of the injury, while others record only a trip and fall. However, the STRs do not support a significant injury to the lumbar spine as part of any injury incurred while on a road march or in physical training. The examiner also noted that the STRs are completely silent for any neck injury (even a minor one) or any loss of consciousness. In particular, the discharge physical examination is silent for any spinal condition or symptoms. The remainder of the Veteran's sick call notes record a variety of minor illnesses with no mention of any subsequent or ongoing care of any portion of the spine. There is notation of an admission to Fort Benning to the urology service for evaluation of chronic right sided back pain in February of 1954, but the examiner explained that this documentation is quite clear that the presumed diagnosis was a genitourinary one, with no mention of any concern for a musculoskeletal cause for the Veteran's symptoms. The examiner also noted how the Veteran has more recently reported his back and neck pain had onset during military service, this is not supported by the provided medical records to have been a significant injury with any sequelae. Following this time in service, there is a substantial gap in the medical records, with no evidence of ongoing treatment of any spinal condition of any type. The next medical records that relate to the spine are from over 40 years after military service. These consistently report gradual onset of low back pain with prolonged standing and activity and make no mention of injury to the lower back. Imaging of the lumbar spine is consistent with age-related degenerative changes. In this same time period, the Veteran is consistently noted to have experienced a head injury while diving into a pool in approximately 1992 or 1993 in Puerto Rico, with changes to his balance and neck pain following this incident. Neurosurgery notes from 2001 prior to his surgery consistently report multiple neck injuries (not related to service), with worsening two years prior following jet skiing and again noting the head injury from the previous decade. The Veteran's statements have subsequently reported that the recording of the history of an injury in a pool was listed as part of a DBQ but did not reflect a significant injury and attributes its recording to a language barrier, but the medical record from the time surrounding his cervical spine surgery does not support this contention, and consistently reports the history of significant injury in in approximately 1992 to 1993 with increased symptoms recently, recorded by multiple medical providers. The examiner also commented on the multiple private medical opinions that relate the Veteran's 1954 injury to his back and/or neck conditions. A September 2009 family practitioner opinion notes a history of injury in 1954 and relates current symptomatology to this without providing a rationale. A June 2010 chiropractor opinion, June 2010 family practitioner opinion, April 2012 family practitioner opinion, and June 2015 private physician nexus letter all relate current back symptoms to injuries during service in 1954 without providing any medical rationale. An October 2020 primary care treatment note records a history of chronic low back pain and cervicalgia, notes reported history of a fall while on active duty and opines this "could be" related. Ultimately, after a detailed review of all of the pertinent medical and lay evidence the examiner opined that the Veteran's current conditions of cervical spine degenerative disease with cervical stenosis and myelopathy, thoracic spine degenerative disease with history of osteoporotic fracture, and lumbar spine degenerative disease with radiculopathy, are less likely than not related to his military service. The noted that any injury sustained in December 1954 was transient without long term sequelae and his current conditions are more likely than not due to age related degeneration as well as post-military trauma to his spine. Analysis Initially, it is not in dispute that the Veteran has the following current diagnoses: lumbar degenerative disc disease with radiculopathy and degenerative arthritis; thoracic degenerative disc disease with osteoporosis and compression fracture at T11; and cervical degenerative disc disease with radiculopathy and degenerative arthritis with stenosis, status post C3-5 laminectomy, C3 to T1 and right T2 posterior fusion, and C6-T1 spinous process removal. This is evidenced by the September 2020 VA examination report. Degenerative arthritis of certain segments of the spine is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the evidence does not demonstrate that a chronic disease was presented during service, did not manifest to a compensable degree within the one year following discharge from active duty presumptive period, and was not noted in service with attributable continuity of symptomatology thereafter. VA and private treatment records show he did not receive a diagnosis of a degenerative bony condition until the 1990s (initially, osteoporosis and after 2000, arthritis), decades after his separation from service in April 1955 and decades after the expiration of the one year presumptive period for arthritis of the spine. While the Veteran is competent to report having experienced symptoms of back pain in service, during the one-year presumptive period after service, and consistently since service, because he has not demonstrated he has the necessary medical expertise, he is not competent to provide a diagnosis or establish by his own opinion that his remote back pain symptoms were manifestations of the currently diagnosed lumbar, thoracic, and cervical spine disabilities. The issue is medically complex, as it requires knowledge of the pathophysiology of arthritis and the interpretation of diagnostic testing such as X-rays and MRIs. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Presumptive service connection therefore is not warranted for a back disability as a qualifying chronic disease under the provisions of 38 C.F.R. § 3.309(a). As alluded to, under 38 C.F.R. § 3.303(b), an alternative method of establishing the in-service incurrence and nexus elements for qualifying chronic disabilities of the spine such as degenerative arthritis is through demonstration of continuity of symptomatology. 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1336. The Veteran has contended that his back and neck symptoms have been continuous since the fall injury during service that required him to be medically evacuated and hospitalized for 5 days during service in December 1954. See November 2015 statement. He has communicated that the lack of documentation of treatment for continuous or chronic symptoms is due to his self-treatment for back and neck symptoms in the intervening years between service and 1995 when he began seeking treatment. See November 2020 statement. In determining whether evidence provided by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). VA can also consider bias in lay evidence and conflicting statements of a Veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran's discharge physical examination did not document any spinal condition or symptoms. A July 2001 VA Neurosurgery Outpatient Note documents a report of severe neck pain since 1993 due to diving into a swimming pool and hitting the bottom. A February 2002 VA History and Physical note indicates a 1 year history of increasing neck pain with no mention of lower back symptoms. A March 2004 VA Ambulatory Care Note indicates a report of lower back pain for the past 2 years. The Board emphasizes that these medical histories were provided during the course of treatment and prior to any adjudicative actions being taken on the Veteran's claim. Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Based on this collective body of evidence, the Board finds that any statements as to a continuity of back or neck pain since service are not credible based on the record, as a whole, including inconsistent statements and accounts of how and when his symptoms originated. See Cartright, 2 Vet. App. at 25 (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence). It is also implausible that the Veteran would not have reported a severe in-service injury and continuous symptoms for approximately 40 years to medical providers when he first began seeking treatment in 1995. See Caluza, 7 Vet. App. at 510-511 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The Board therefore finds that service connection is not warranted through demonstration of continuity of symptomatology for the Veteran's qualifying chronic back disabilities. 38 C.F.R. § 3.303(b). The Board may also consider in its credibility determination the plausibility that back and neck symptoms had their onset due to an injury during service but were not attributed to this cause until the Veteran's claim was filed in 2009. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (noting lack of contemporaneous evidence and length of time between onset and report of observations may properly be considered as evidence against credibility). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, in assessing service-connection claim). As earlier noted, there is conflicting evidence in the file regarding the nexus element between the current spine disabilities and the December 1954 back injury. The several opinions that were obtained in support of the claim derive from both private and VA healthcare providers. However, when compared with the September January 2023 VA orthopedic specialist's opinion, the Board finds that the opinions supporting the claim merit less evidentiary weight and are thus less probative in determining whether there is a nexus between the current spine disabilities and service. The September 2009 opinion by Dr. P., who stated that after reviewing the Veteran's medical records he believed his back condition was secondary to the injury in 1954, is conclusory (without rationale) and does not specify the back diagnosis he is relating to the injury in service. The June 2010 opinion by chiropractor, Dr. Co., who stated that after reviewing available records (STRs, records of cervical spine surgery, and records generated in her clinic since April 2010) his back condition and radiculopathy were "referred to injuries [the Veteran] had in 1954," is also conclusory (without adequate explanation of rationale). It also appears to misinterpret some STRs because she indicated the Veteran is shown to have been treated in service for a chronic back condition related to the musculoskeletal condition when the STRs prior to the 1954 back injury show treatment for recurrent back pain from a congenital kidney condition. Statements by Dr. Cr. in June 2010 and April 2012, indicating that the Veteran's medical history included a back injury from a fall in 1954 resulting in back pain requiring analgesics and neck surgeries/procedures in 2001 and 2008 and that his "complaints seem to be due to complication of 1954 injury," is without rationale. A June 2015 opinion of Dr. S., who stated that after reviewing the Veteran's medical records (he did not specify which records) he believed the back condition was secondary to the injury in 1954, is without rationale and does not specify the diagnosis he is relating to the injury in service. A June 2017 VA examination addendum report, indicating that the Veteran's current lumbar spine disability (degenerative joint disease and degenerative disc disease with radiculopathy) is consistent with the natural progression of his documented back injury in service, was conditional upon acceptance of the Veteran's statements as "objective evidence for continuous progression of his documented back injury" in service to the present, supported by the several statements of treating providers. A November 2020 statement by a VA physician, who opined that based on the Veteran's medical history and progressive symptoms of low back pain, "it is more likely than not or at least possible" (terms which are equivocal) that the Veteran's in-service back injury "could [which is speculative] be related to his back pain," is without rationale. A VA primary care provider in October 2009 noted that based on a review of the pertinent December 1954 STR indicating a back injury, she had limited information and was unable to offer a statement connecting his neck and back pain to service. The November 2022 VA medical opinion obtained from a physician's assistant contains a positive nexus finding based on the Veteran's not credible lay reports of continuous symptoms since service and deference to the positive nexus findings in the above-discussed private opinions/nexus statements. See Kowalski v. Nicholson, 19 Vet. App. 171, 179-80 (2005) (Board may disregard medical opinion if found to be based on discredited history provided by veteran); see also Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Board may properly reject medical opinion where it is based on facts contradicted by the record). This examiner did not otherwise include a medical rationale for their positive nexus finding. In contrast, the January 2023 VA medical opinion offered by a physician that specializes in orthopedics and orthopedic surgery and offers clear conclusions with specific reference to x-rays taken of the spine (finding that x-rays support age-related degeneration) and well-reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The examiner included an annotated list of the relevant evidence considered in their opinion and addressed the conflicting evidence of record. This cannot be said for the contrary opinions of record which were conclusory, lack well-reasoned rationales, and/or were speculative in nature. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (a speculative medical opinion provides neither positive nor negative support for the Veteran's claim). Further, the January 2023 VA medical opinion contains the most comprehensive analysis of the Veteran's STRs and post-service medical history and was provided by a physician that specializes in determining the causes and course of treatment for orthopedic disabilities. The Board therefore affords this examiner's findings and conclusions a persuasive amount of probative value. See D'Aries v. Peake, 22 Vet. App. 97, 107 (2008) (it is within the purview of the Board to evaluate the medical evidence and favor one medical opinion over another). The Board acknowledges several arguments that have been raised during the course of this appeal. It has been suggested that the Veteran's training as a medic during service lends competency to his lay statements regarding a nexus or causal relationship between the in-service back injury and his current spine disabilities. Crucially, the evidence does not demonstrate that the Veteran practiced medicine in any professional capacity since his separation from service. It has not been shown that he has the specialized medical knowledge, training and experience that would render him competent to provide an opinion regarding the etiology of a spine disability. Analyzing the complexities of whether a remote in-service injury caused any spine disabilities would go beyond the training and medical knowledge the Veteran had been shown to possess. The medical professionals who have provided VA opinions in this matter are, in contrast, competent through their specialized medical training, knowledge and experience to provide this evidence. See 38 C.F.R. § 3.159(a)(1); see also Fed. R. Evid. 702 ("A witness who is qualified as an expert by knowledge, skill, experience training, or education may testify in the form of an opinion" provided certain conditions are met). Thus, opinions provided by the VA examiners in this matter, and as noted particularly a physician with a specialty in orthopedics, merit more probative value than those given by the Veteran. In addition, it has been stated that the Veteran's separation examination contains factual problems with regards to its accuracy and thoroughness but also indicating that medics are "notorious for not documenting their own issues." See June 2020 Appellate Brief. The argument that a lack of specificity and accuracy with regard to several aspects of this form such as the Veteran's blood type, unit, or place of birth infers a finding that a history of spine issues were not accurately recorded is based solely on conjecture. The medical evidence found in the notes does have a level of specificity regarding finding a medical issue to include indications of treatment of a URI. The examination report identifies the Veteran's name and birth date as well as other indications of a personal matter that indicate he was the person examined. The examiner wrote that there were no complaints of a medical nature at the time of the examination. The representative indicates that the separation examination is an example of "pencil-whipping" but also points out that the Veteran may not have complained of disability at the time of the separation examination. The Board can only assess the separation examination on its face and it indicates that the Veteran did not complain of a back disability on that day and, in fact, the Veteran himself never reported that the separation examination was a "rush job" but rather the sole indication of such was by a representative sixty-five years after the fact. It has also been raised that the Veteran's STRs are incomplete and that documents may be missing. The record does not suggest that this is the case. There are STRs spanning from the Veteran's entrance examination in April 1953 through his separation physical in April 1955 including those documenting treatment for back pain. The only indication of missing STRs appears to be a contention made by the Veteran to the June 2017 VA examiner who noted, "some records are claimed to have been lost or destroyed and would not be available for review..." There is otherwise no factual or contextual indication that the Veteran's STRs are incomplete or that documents are missing. To the extent that the Veteran believed his records to be fire related, the records were dated stamped as received at the VA Regional Office in June 1955 and thus would not have been at the NPRC for the 1973 fire. Based on the above, the Board finds that evidence is not in approximate balance but is weighted against finding that any spine disabilities were directly caused by the Veteran's service. Moreover, presumptive service connection is not warranted because the evidence does not show that the qualifying chronic spine disabilities manifested during service, within a year of service, and lay statements as to a continuity of symptomatology since service have been found to be uncredible. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection is denied. 38 C.F.R. § 3.303. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mckone, Kyle 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.