Citation Nr: 18154172
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-48 249
DATE:	November 29, 2018
ORDER
Entitlement to service connection for a back disability (thoracolumbar spine) is denied.
Entitlement to service connection for a neck disability (cervical spine) is denied.
FINDINGS OF FACT
1. The Veteran’s back disability (thoracolumbar spine) is not causally or etiologically related to his active military service.
2.  The Veteran’s neck disability (cervical spine) is not causally or etiologically related to his active military service.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a back disability (thoracolumbar spine) have not been established. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.303.
2. The criteria for entitlement to service connection for a neck disability (cervical spine) have not been established. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1975 to July 1976.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 
VA has a duty to notify and assist the claimant in substantiating this claim for VA benefits, as provided by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim. Proper notice will inform the Veteran of what evidence VA will seek to provide, and of what evidence the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159 (b)(1) (2013). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran’s service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. 
However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).
In the instant case, VA did not provide the appellant with a VCAA notice prior to the issuance of the April 2016 rating decision. However, the appellant’s current claim for compensation benefits was filed as a Fully Developed Claim (FDC) using VA Form 21-526EZ. When filing a FDC, a claimant submits all evidence relevant and pertinent to his claim other than service treatment records, which will be obtained by VA. The FDC form includes notice to the claimant of what evidence is required to substantiate a claim and of the claimant’s and VA’s respective duties for obtaining evidence. Thus, the notice that is part of the FDC form submitted by the appellant satisfies the duty to notify under the VCAA.
In any event, the Veteran has not raised any issues with the duty to notify. 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.”).
Thus, for the foregoing reasons, the Board finds that VA has substantially complied with its duty to notify under the VCAA, and it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal.
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).
Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “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. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). 
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 7104 (a); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  The Board must consider all lay (non-expert) and medical evidence in evaluating a claim. See 38 U.S.C. § 1154 (a). 
In general, a lay witness is competent to provide testimony or statements relating to observed symptoms or facts within the ambit of the witness’s personal knowledge. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); However, a layperson is generally not competent to determine issues requiring specialized knowledge or training. 
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. See 38 U.S.C. § 5107 (b); 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (West 2014); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001); Gilbert, 1 Vet. App. at 49.
1. Entitlement to service connection for back condition (thoracolumbar spine)
The Veteran seeks service connection for his thoracolumbar spine disability, which has been diagnosed as thoracolumbar degenerative disease. The Veteran has consistently asserted that his disability arises from an injury incurred in service while he was stationed at Moffet Field in California. The Veteran’s Military Occupational Specialty (MOS) was as an Aircraft Mechanic, which required him to lift aircraft propellers and other heavy objects frequently. The Veteran claims that during his normal assigned duties, a propeller fell from a sling used to transport it and the Veteran, in an attempt to catch the propeller, injured his lower back. The Veteran’s service treatment records (STRs) and DD 214 forms confirm his MOS and the injury that the Veteran claimed was incurred in service. 
The Veteran’s STRs, specifically the orthopedic consultation notes, reflect that in January 1976 he complained of upper thoracic spine pain. The consultation note also stated that the Veteran had experienced back and upper neck pain for nine months since boot-camp and that lifting objects caused the Veteran pain in the upper thoracic spine region. The consultation note further added that the Veteran has no prior history of trouble or trauma. STR notes from mid-January 1976 indicate that the Veteran was having back pain for three weeks from the thoracic high lumbar area, but that no spinal tenderness, radiation or sciatica were noted.
The Veteran was placed on limited duty and treated with heat pads, medication and physical therapy. X-rays taken in April 1976 show that the Veteran had right scoliosis two degrees A May 1976 entry in the Veteran’s STRs states that he complained of chronic recurrent back pain with usual job activities and has had poor results with the medications and physical therapy. The note also contemplated whether the Veteran should be considered for medical board based on his back injury. The Veteran’s diagnosis at that time was lumbar pain; lumbar scoliosis. The physicians treating the Veteran attributed his thoracic lumbar pain to a back strain. The Veteran continued to complain of back pain until his discharge from the Navy in July 1976.  
The Board also concludes that the element of a current disability is satisfied in this case. VA treatment records show that the Veteran was diagnosed with Thoracolumbar Degenerative Disease in July 2007. VA treatment records since July 2007 show continuous treatment for this disability. 
With two of the three criteria for service connection satisfied, the instant claim turns on whether there is a nexus between the Veteran’s current disability and the injury or event that occurred in service. See 38 U.S.C. § 5107 (a); Shedden, 381 F.3d at 1163. 
On the Veteran’s May 1976 discharge examination report, scoliosis lumbosacral spine was listed under the defects and diagnoses section. The Veteran’s medical records do not reflect complaints of back pain from July 1976 until July 2001. In a December 1994 letter from Mental Health Medical Associates, the Veteran’s psychiatrist noted that the Veteran’s medical history is “benign with the exception of a fractured leg in 1977 following a motorcycle accident.” 
The Veteran reported that he first complained of back pain after service during a medical appointment in Mathe, California in July 2001. The subsequent complaint of back pain was in December 2004 during a primary care follow up. The Veteran presented with complaints of chronic thoracic and low back pain due to old injuries with history of three vertebral fractures. 
In January 2005, the Veteran was involved in a serious motorcycle accident that put him in a coma for several weeks. X-rays of the T-spine and LS-spine revealed no spinal abnormalities, but a small wedge or compression on the T11 vertebrae, that appeared old, was noted. A CT scan of the C-spine was negative. A subsequent primary care outpatient consultation in February 2013 noted that the Veteran had a history of multiple head traumas in 2005. During a January 2005 primary care follow-up consultation, the Veteran presented with complaints of persistent, gradually worsening upper and lower back pain. The Veteran stated that he had “multiple MVA [motor vehicle accidents] known to have fractured upper thoracic and upper lumbar vertebrae and these are the same areas that are painful.” The examiner indicated that x-rays showed only old injury and very early arthritic changes in the low back.” During an October 2006 primary care consultation, the examiner also noted that the Veteran had a fractured spine upper back.
The Veteran started receiving chiropractic treatment for his mid-back and low back condition in June 2007. During a June 2007 orthopedic consultation, the examiner opined that the Veteran’s lumbosacral spine pain was “probably spondylosis with some degenerative disc disease.”
In October 2010, the Veteran presented with pain and discomfort, so he was given an MRI of the lumbar spine. The examiner reported the following findings: “multilevel degenerative disc disease. L1-L2: Moderate diffuse disc bulge indents the ventral thecal sac but no spinal stenosis; L-2-L3: mild diffuse disc bulge. No stenosis. L3-L4: Moderate diffuse disc bulge. No stenosis. L4-L5: Moderate diffuse disc-bulge. Mild facet arthritis. No spinal stenosis. Mild bilateral foraminal stenosis. L5-Sl: Large diffuse disc bulge extending to the left foraminal and extraforaminal regions. Mild facet arthritis. Mild left foraminal stenosis.”
During an October 2014 physical therapy outpatient initial evaluation, the examiner reported that the Veteran “presents with complains of chronic pain, not into legs; from years of riding motorcycles.” The examiner noted the onset of the chronic pain as October 2014. A December 2014 x-ray of the Veteran’s chest depicted an old fracture that the examiner determined “50%, dating back to 2006.” 
During a visit to the chiropractor in August 2015, the Veteran complained of constant bilateral back/hip pain. The Veteran stated that he was involved in a motorcycle accident in July 2015. The chiropractor concluded that the Veteran had cervical subluxation, thoracic subluxation, lumbar subluxation and sacral subluxation. In December 2015, the Veteran had an x-ray of his lumbar spine, which showed sacralization of the L5 vertebra (a congenital anomaly where the fifth vertebra is fused to the sacrum bone at the bottom of the spine), mild lumbar spondylosis, and moderate degenerative disc disease at the L5-S1 level.
In January 2016, the Veteran was afforded a VA examination for the back (thoracolumbar spine). The DBQ indicated that the Veteran was diagnosed with degenerative disc disease in July 2007 and again in January 2016. The DBQ also reflected a diagnosis for spondylosis effective January 2016. The examiner reported that the Veteran had localized pain or tenderness on palpation in the lower lumbar and paralumbar region. The Veteran reported on the DBQ that his disability makes it difficult for him to sit or stand for more than 15 minutes. Without aggravating his condition. Bending and lifting is also rendered difficult as a result of his back disability.
The Veteran was afforded another VA examination in March 2016, in which the examiner evaluated the Veteran for back pain to include thoracic and lumbar pain, chronic back pain, back strain, and possible scoliosis. Like the January 2016 VA examination, the examiner diagnosed the Veteran with thoracolumbar degenerative disease with an onset in 2007. The examiner reported that it was noted on multiple orthopedic evaluations that the Veteran’s diagnosis and treatment for back pain was more consistent with a diagnosis of back strain which is more often a self-limited condition. The examiner indicated that because the Veteran’s claims file was silent for further evaluations for back pain between 1976 and 2007, the “condition noted in service would be considered acute and resolved and any current symptoms noted since 2007 would be from a different injury/event likely normal wear and tear. Thus, it is less likely than not that [the] Veteran’s back condition was incurred in service. There is no evidence that the examiners were not competent or credible, and as the examination was based on the medical evidence and physician evaluations of the Veteran, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s back disability at the time of the examination. Nieves-Rodriguez, 22 Vet. App. 295.
The Veteran provided a letter dated October 2016 from his chiropractor, who indicated that upon review of the Veteran’s June 2007 MRI, the Veteran’s L1-L2 and L5-S1 disc bulge could be a result of an injury he sustained while on active duty at Moffet Field. The Veteran’s chiropractor failed to provide a rationale for his medical opinion. Also, the chiropractor’s October 2016 medical opinion contradicts his earlier statement from October 2014 that associates the Veteran’s back pain with years of riding motorcycles. As such, the Board finds the chiropractor’s October 2016 medical opinion inadequate for the purpose of establishing the etiology of the Veteran’s disability. Therefore, the Board finds that the October 2016 medical opinion is entitled to no probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).
The Board acknowledges that a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau, 492 F.3d at 1377. However, as a lay person, the Veteran is not competent to provide a medical diagnosis or nexus regarding his current back disability and his active service; such a matter requires medical expertise and laboratory testing. Id. (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the Board finds the Veteran’s representations in this regard to be of extremely limited probative value and significantly outweighed by the opinions expressed concerning the relationship between the Veteran’s current back disability and his active service in the above medical records.
The evidence of record does not support a finding of continuity of symptoms post-service for thoracolumbar degenerative disease. It appears instead that the Veteran first complained of back pain in July 2001 and was first treated for back pain in June 2006, approximately three decades after his incident in service. Also, the medical records confirm that since his discharge from service, the Veteran has been involved in several motor vehicle accidents and has incurred at least three fractures to his thoracic and upper lumbar vertebrae. In fact, an examination of an x-ray taken in December 2014, suggests that the Veteran has an old fracture in his chest that was likely incurred in 2006. The Veteran has also reported on several occasions that the fractures he incurred as a result of his motor vehicle accidents are the sites where his back pain is located. 
Moreover, the March 2016 VA examiner’s medical opinion indicated that it is less likely than not that the Veteran’s thoracolumbar degenerative disease is related to his in-service back injury because of the significant time gap between the Veteran’s discharge from military service and his first complaint of back pain. In fact, the VA examiner’s March 2016 medical opinion seems to be consistent with the medical evidence in the Veteran’s claims file that suggests that the Veteran’s back pain was likely caused by injuries he sustained after his military service. Specifically, the Veteran’s medical records reference multiple motor vehicle accidents that the Veteran was involved in post-service including in 2005 and 2015. 
The Veteran’s occupational and leisure activities between 1976 and 2001 are also inconsistent with a history of chronic back pain. In a December 1994 letter from Mental Health Medical Associates, the Veteran’s psychiatrist described the Veteran’s occupational history in the following way: “Following discharge from the Navy the patient has been supporting himself and his family as a painting or carpentry contractor. He has also worked manufacturing houses and has worked at ski resorts. He also indicates that he has been working with one contractor off and on for the past 16 years doing painting and carpentry.” The psychiatrists also described the Veteran’s activities of daily living, which included: “racing motorcycles with his 14-year-old son … He also spends considerable time working on his house which is situated on two and a half acres.” Also, the Veteran reported that while he was working as a painter for his own painting company his job duties were very physical in nature and required him to lift buckets of paint, hoist power washers, carry ladders and essential paint equipment, and move a lot of furniture in and out of houses.
Accordingly, as there is no competent and credible evidence showing a continuity of symptoms between the Veteran’s discharge from service and his diagnosis of thoracolumbar degenerative disease, service connection on a direct basis under 38 C.F.R. §§ 3.303 is unwarranted. Having reviewed the record, the Board finds that the competent and probative evidence of record is against finding a nexus between the Veteran’s current disability and his military service.
The Board finds the preponderance of the evidence is against finding that the Veteran’s current back disability is related to his active service. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. Therefore, the Veteran’s claim for service connection for a back disability must be denied.
2. Entitlement to service connection for neck condition (cervical spine)
The Veteran seeks service connection for his cervical spine disability. The Veteran has consistently asserted that his disability arises from an injury incurred in service while he was stationed at Moffet Field in California, specifically when he attempted to catch a falling propeller as noted above. As previously explained, during a January 1976 orthopedic consultation, the Veteran complained of upper thoracic spine pain. The consultation note also stated that the Veteran had experienced back and upper neck pain for 9 months since boot-camp and that lifting objects caused the Veteran pain in the upper thoracic spine region. Because there is evidence of neck pain in service, the Board concedes that the Veteran experienced an in-service injury. 
The Board also concludes that the element of a current disability is satisfied in this case, because VA treatment records show that the Veteran was diagnosed with cervical degenerative disease in 2010 and has since received continuous treatment for the disability.
With two of the three criteria for service connection satisfied, the instant claim turns on whether there is a nexus between the Veteran’s current disability and the injury or event that occurred in service. See 38 U.S.C. § 5107 (a); Shedden, 381 F.3d at 1163. 
The Veteran’s medical records reflect that he had complained of neck pain since October 2006. During a July 2007 examination, the examiner noted cervical radiculitis (pinched nerve) and an abnormal cervical x-ray with grade I retrolisthesis of C5 and C6 with narrowed disc height of C5-6. The Veteran started receiving chiropractic care in February 2013 for cervical radiculopathy. He received seven therapy sessions and therapy was discontinued in May 2013 because it was deemed no long necessary as goals of therapy were met.
In March 2013, the Veteran received an x-ray of his cervical spine, which provided the following findings: “no fracture or subluxation. There are disk space narrowing and spondylosis at C5-6 and disk space narrowing at C6-7. Other disk spaces are maintained and the prevertebral soft tissues are normal.” The examiner compared the x-ray findings to the October 2006 medical evaluation of the Veteran’s neck and offered the following impression: “disk space narrowing has progressed at C6-7” and “degenerative changes at C5-6 and C6-7.”
In April 2013, the Veteran was evaluated for cervical radiculopathy because he reported that he woke up with pain one morning. During the evaluation the examiner noted that the Veteran reported no injury causing the disability, other than two back fractures without surgery/fusion that were fully healed. The examiner reported that the Veteran presented with symptoms consistent with C7 nerve root impingement.
In January 2016, the Veteran was afforded a VA examination for the neck (cervical spine). The examiner indicated that the Veteran was diagnosed with cervicalgia in January 2006 and cervical radiculitis (pinched nerve) in November 2006.  The Veteran reported that his neck pain limits his activities, including yard work and working as a contractor. The examiner reported that the Veteran had localized pain or tenderness on palpation in the posterior base of the neck. 
In March 2016, the Veteran was provided with another VA examination. The examiner indicated that the Veteran had cervical degenerative disease, which was diagnosed in 2010. The examiner opined that, based on the evidence in the claims file, “the Veteran was evaluated for neck symptoms in 1976. Thereafter, the evidence was silent for any other neck symptoms until 2006. Given lack of ongoing evaluation, the evaluation in 1976 would be considered acute and resolved and any current neck symptoms would be from a different injury event and likely normal wear and tear thus it is less likely than not that Veteran’s neck condition was incurred in service.”
There is no evidence that the examiners were not competent or credible, and as the examination was based on the medical evidence and physician evaluations of the Veteran, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s neck disability at the time of the examination. Nieves-Rodriguez, 22 Vet. App. 295.
The evidence of record does not support a finding of continuity of symptoms post-service for cervical degenerative disease. It appears instead that the Veteran first complained of neck pain in October 2006 and was first treated for a neck disability in 2013, almost three decades after his incident in service. Moreover, his STRs do not reflect complaints of neck pain or a diagnosis for a neck disability in service. The medical records do not reflect complaints of symptoms relating to the Veteran’s neck pain prior to October 2006. In fact, during an April 2013 evaluation for cervical radiculopathy, the Veteran denied having had a neck injury that caused his neck pain, other than two back fractures that had fully healed. 
Accordingly, as there is no competent and credible evidence showing of continuity of symptomatology since the Veteran’s injury in service, service connection on a direct basis under 38 C.F.R.  3.303 is unwarranted. Having reviewed the record, the Board finds that the competent and probative evidence of record is against finding a nexus between the Veteran’s current disability and his military service.
The Board finds the preponderance of the evidence is against finding that the Veteran’s current neck disability is related to his active service. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. Therefore, the Veteran’s claim for service connection for a neck disability must be denied.
 
Michael Pappas
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. White, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.