Citation Nr: 1808870	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  14-11 097A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for thoracolumbar spine status post laminectomy (claimed as upper and lower back condition).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Robert A. Elliott II, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1976 and September 1979. 

This case comes before the Board of Veterans' Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, that denied the issue on appeal. 

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2017; a transcript of that hearing is associated with the claims file.

At the November 2017 hearing, the Veteran raised the issue of entitlement to service connection for a cervical spine disability.  The Board observes that the Veteran had previously claimed entitlement to service connection for a neck disability, and the RO denied that claim in a July 2012 rating decision, with notice sent out in August 2012.  Upon filing a request to reopen, the claim was again denied by the RO in July 2014.  The Veteran disagreed with this determination, and the RO issued a Statement of the Case addressing the claim in September 2016.  The Veteran did not file a VA Form 9 perfecting an appeal of that issue.  Therefore, the issue is no longer in appellate status, and will not be discussed herein by the Board.  If the Veteran wishes to raise a claim to reopen his previously denied service-connection claim for a cervical spine disability, such must be submitted on the application form prescribed by the Secretary.  38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017).  


FINDING OF FACT

The evidence of record is against a finding that the Veteran has a thoracolumbar spine disability that is related to an injury sustained during active service



CONCLUSION OF LAW

The criteria for entitlement to service connection for thoracolumbar spine disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Neither the Veteran nor his representative has 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).

In order to obtain service connection on a direct basis, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, i.e., a "nexus."  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that his thoracolumbar spine disability had its onset in, or is otherwise related to injuries sustained during his period of active service.  In particular, the Veteran noted wear and tear on his back during boot camp rifle range training, to include exercises with his drill instructor's boot to the back, and subsequent training consisting of marching with full gear to include radio and encryption devices.  See May 2011 Correspondence.  He also testified that he had a fall to the cement in service.  
Following a review of the record and the Veteran's contentions, the Board finds that the evidence of record weighs against a finding that the Veteran's current back disability is related to his in-service injuries.  

It is undisputed that the Veteran has a current diagnosis of degenerative osteoarthritis and degenerative disc disease.  See September 2012 thoracolumbar spine Disability Benefits Questionnaire (DBQ) VA examination. 

The Veteran's service treatment records (STRs) are negative for complaints, treatment, or a diagnosis of any upper and lower back condition during service.  The Board does note November 1977 STR records of treatment for severe pain in the right buttock area and treatment with a whirlpool bath.  Although the Veteran testified that this treatment was for his back, the service treatment reports note no injury to the back at the time.  Subsequent STRs through separation showed no other complaint of, treatment for or diagnosis of an upper or lower back injury or acute or chronic condition.  The Veteran received a "normal" clinical evaluation of the spine at his separation examination in August 1979.  

A November 12, 1998 VA Medical Center (VAMC) record notes an assessment of "rule out" osteoarthritis of the lumbar/cervical spine vs. chronic strain.  At that assessment, the Veteran reported back pain that had been present for 1 and a half years.  A July 7, 1999 VA treatment report notes a history of chronic low back pain for 3 years.  

Numerous subsequent VAMC records show ongoing treatment for back issues. 

In September 2012, the Veteran attended a Thoracolumbar Spine DBQ VA examination.  The examiner diagnosed degenerative osteoarthritis and degenerative disc disease.  The Veteran stated he has experienced recurrent slow progressive low back pain since the initial injury, 1977, but did not require treatment or see a doctor for a low back condition until 1998.  The examiner noted that the Veteran had a history of multiple motor vehicle accidents (motorcycle injuries) between 1983 and 2007 which required medical treatment.  Due to the motorcycle injuries, he has undergone 3 cervical and upper thoracic fusions.  The latest surgical procedure April 2012 fusions cervical and upper thoracic area with hardware and cage. 

The examiner opined that the Veteran's upper and lower back condition was not at least as likely as not incurred in or caused by injuries sustained during the Veteran's period of service.  By way of rationale, the examiner noted that the Veteran's service medical records do not include a report of back injury, but rather a report of injury of the right gluteal area, suggestive of an acute but transient condition which resolved prior to discharge from active service.  The examiner pointed out that the Veteran's discharge examination was void of complaints or treatment for a low back condition, and that medical records from 1998 indicate that the Veteran experienced low back pain 1-3 years prior to examination without history of a recurrent low back condition.  The examiner assessed the Veteran's x-rays, and found that they were "consistent for aging population with minimal degenerative changes noted."  The examiner also highlighted the Veteran's history of multiple motor vehicle accidents on a motorcycle, sustaining injury to the upper spine and requiring considerable surgical treatment.  A laminectomy due to a degenerative disc protrusion was first noted in 2006.  The examiner concluded that based on the gap in evaluation and treatment for a low back condition of almost 20 years, and review of the written medical records indicating onset of lower back pain in 1990s after the Veteran had sustained several motor vehicle accidents, the Veteran's current low back condition is less consistent with an isolated right gluteal injury occurring in 1977 and more consistent with injuries sustained during multiple motor vehicle accidents superimposed on degenerative changes secondary to an aging population. 

The Board finds the September 2012 VA examiner's opinion to be highly probative, as it reflects review of all of the Veteran's medical records, to include treatment reports in 1998 referencing a history of back pain for 1-3 years, and clinical evaluation of the Veteran's x-rays, characterizing the Veteran's disability as one more likely due to post-service injury superimposed on age-related degenerative changes.  The Veteran has had ample opportunity to obtain and submit a medical opinion in favor of his claim, and against the reasoned conclusions of the September 2012 VA examiner, but he has not done so.
In November 2017, the Veteran attended a Board hearing.  He testified to originally injuring his spine in boot camp when he was slammed to the pavement.  He indicates that he was put on bed rest for two days and didn't seek treatment again for his back until 2005.

The Board has considered the Veteran's lay assertions as to the etiology of his thoracolumbar spine status post laminectomy, to include his hearing testimony indicating that while in boot camp he was slammed to the pavement and put on bed rest for two days, and that it is his belief that his upper and lower back disability is related to this incident.  Although the Veteran is competent to attest to his in-service experiences, he is not competent in these circumstances to opine as to the etiology of his thoracolumbar spine status post laminectomy.  Importantly, the Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection.  The Board finds the opinion of the September 2012 VA examiner to be more probative in this regard. The examiner considered the Veteran's lay statements, and ultimately concluded that from a medical perspective, it is less likely that the Veteran's current disability is related to any in-service back injury.

The Board recognizes that the Veteran asserts that he has experienced back pain since service.  Upon review of the evidence however, the Board finds the evidence to be against a finding of continuity of symptoms since service, as the Veteran had a "normal" clinical evaluation of the spine upon separation from service in 1979, and in prior records of treatment in 1998 and 1999, the Veteran specifically reported to VA physicians that his back pain initiated 1.5 to 3 years prior to assessment [after service].  In light of contemporaneous normal clinical examination results in 1979, and prior conflicting statements as to date of onset, the Board finds that a continuity of symptoms is not established.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence).
In sum, the evidence deemed most probative by the Board, specifically the September 2012 VA medical opinion, demonstrates that the Veteran's thoracolumbar spine disability did not manifest in service, or indeed for many years thereafter.  The examiner provided a rationale for the opinion proffered and it is consistent with the evidence of record.  

In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for thoracolumbar spine status post laminectomy (claimed as upper and lower back condition) is denied.



____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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