DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

M. ESPINOZA · 2022 · Case ID: 22017293

DENIED

Summary

The veteran, who served in the Army from February 1972 to July 1973, appeals the denial of service connection for a neck disorder and a right hip disorder, both claimed as secondary to a service-connected low back disability. The veteran contended that his neck condition began in June 1973 and was related to service or secondary to his back condition, while his right hip condition also allegedly began in June 1973 and was claimed as secondary to his back condition. However, the veteran's service treatment records (STRs) were silent for any complaints or treatment related to either the neck or right hip conditions. In-service examinations found these areas clinically normal. While the veteran later received diagnoses for neck and hip conditions, including degenerative disc disease and trochanteric pain syndrome, multiple VA examinations from 2006 through 2021 consistently opined that these conditions were less likely than not incurred in or caused by service. The examiners noted the absence of in-service complaints, the normal findings on in-service examinations, the lack of continuity of treatment, and the conditions' onset many years after service, often attributing them to the normal aging process or unrelated factors. The Board found the VA opinions probative and gave them greater weight than the veteran's lay statements, which were also inconsistent regarding the onset of symptoms. The Board concluded the evidence did not support a finding of service connection for either the neck or hip disorders, either directly or secondarily, and the benefit-of-the-doubt doctrine was not applicable due to the evidence preponderating against the claims.

Rationale

STRs silent for neck condition; in-service exam found cervical spine clinically normal.; Later diagnoses attributed to aging, obesity, and occupational factors.; No evidence of continuity of treatment for neck condition post-service.; VA examiners opined less likely than not related to service or secondary to low back DDD.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

09-36 067

Full Decision Text

Citation Nr: 22017293
Decision Date: 03/24/22 Archive Date: 03/24/22

DOCKET NO. 09-36 067
DATE: March 24, 2022

ORDER

Entitlement to service connection for neck disorder, to include as secondary to a service-connected low back disability, is denied.

Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected low back disability, is denied.

FINDINGS OF FACT

1. The Veteran's neck disorder did not have onset in service, is not otherwise related to service and was not caused by or aggravated by a service-connected disability.

2. The Veteran's right hip disorder did not have onset in service, is not otherwise related to service and was not caused by or aggravated by a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for neck disorder, to include as secondary to service-connected low back disability have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for a right hip disorder, to include as secondary to service-connected low back disability have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1972 to July 1973.

The claims herein have been remanded by the Board of Veterans' Appeals (Board) previously, with the most recent Board remand in February 2021. They now return for appellate review.

The Board notes that the issue of service connection for left lower extremity neuropathy and numbness was also remanded by the Board in February 2021, but this claim has been granted in a May 2021 rating decision. As that was a grant of the full benefit sought, that issue is no longer before the Board.

SERVICE CONNECTION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a). To establish service connection on a direct incurrence basis, a veteran 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995).

1. Entitlement to service connection for neck disorder, to include as secondary to service-connected low back disability

The Veteran contends that his currently diagnosed neck disorder is related to service, or in the alternative, is caused by or aggravated by his service-connected back disability. Specifically, in his February 2007 application for benefits, the Veteran indicated his neck condition began in June 1973. Additionally, in a VA Form 9 substantive appeal, the Veteran reported, in part, his neck condition is due to his back condition.

The Veteran's service treatment records (STRs) are silent for any complaints or treatment for a neck condition. Specifically, a May 1973 in-service examination, conducted in conjunction with the Veteran's separation from active duty, found in pertinent part, the Veteran's spine, other musculoskeletal system, as relevant to as cervical spine condition, was clinically normal upon examination, which weighs against a finding of an in-service injury or event. Similarly, examinations dated in March 1987, June 1991, and December 1995, obtained in conjunction with the Veteran's service in the Puerto Rico Army National Guard, also found in pertinent part, the Veteran's spine, other musculoskeletal system, as relevant to as cervical spine condition, was clinically normal upon examination, which again weighs against a finding of an in-service injury that persisted. In this regard, the Board finds that if the Veteran had experienced continuous symptomology related to his neck or cervical spine, it would have been reasonable for him to have reported during service, as he did report other complaints, such as a back injury, as documented in a March 1973 STR, and that he hit his head
Similarly, examinations dated in March 1987, June 1991, and December 1995, obtained in conjunction with the Veteran's service in the Puerto Rico Army National Guard, also found in pertinent part, the Veteran's spine, other musculoskeletal system, as relevant to as cervical spine condition, was clinically normal upon examination, which again weighs against a finding of an in-service injury that persisted. In this regard, the Board finds that if the Veteran had experienced continuous symptomology related to his neck or cervical spine, it would have been reasonable for him to have reported during service, as he did report other complaints, such as a back injury, as documented in a March 1973 STR, and that he hit his head, as documented in an April 1973 STR. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist).

However, the Veteran has been diagnosed with a current neck condition. A February 2006 private x-ray shows paraspinal spasm and degenerative disc disease (DDD) at the C5-C6 spinal segments. A May 2007 VA General Medical Examination shows a diagnosis of cervical spondylosis.

An August 2016 VA neck conditions examination reflects diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome. The examiner noted mild to moderate cervical DDD with spondylosis was found on an x-ray dated April 2013. The Veteran did not report an injury to his neck but complained of constant upper back pain that radiates toward his head. The examiner opined that the Veteran's neck disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale provided included the fact that the Veteran's STRs are silent for a neck condition. Additionally, the examiner stated it is well documented in the medical literature that cervical DDD with spondylosis is considered part of the normal aging process in patients over 40 years old and is a chronic condition that tends to progressively worsen over time with age and/or due to repetitive trauma. The examiner also explained that degenerative joint disease or DDD would not be developed in short periods of time, they are long standing processes. The examiner stated that age, obesity, and an approximate 15 year occupational history as a chemical operator all predisposed the Veteran to the development of cervical spine DDD/spondylosis. Lastly, the examiner noted there is no evidence of continuity of treatment for a neck condition within 2 to 3 years of release from active service.

A July 2018 VA neck examination shows diagnoses of intervertebral disc syndrome and mild cervical DDD with spondylosis from an April 2013 x-ray. The examiner opined it was less likely than not the Veteran's neck condition was incurred in or caused by service. The rationale was that the STRs are silent for a cervical spine condition during service or within one year after separation. As for secondary service connection, the examiner did not provide an opinion but stated a baseline level of severity of aggravation could not be determined because the medical evidence does not support that a cervical spine condition could be associated with or aggravated by lumbar spine DDD.

An April 2021 VA neck opinion reflects that the Veteran's lay statements regarding multiple injuries during service were taken into account when offering the medical opinions. The examiner opined it was less likely than not the Veteran's cervical condition was caused by or the result of service. The rationale was that the STRs are silent for a neck condition and all neck conditions were diagnosed several years after active duty service ended. The examiner also opined it was less likely than not the Veteran's neck disorder was due to or aggravated by the Veteran's back DDD. The rationale was that the conditions are not related to each other on a pathophysiological or anatomical basis.

The August 2016, July 2018 and April 2021 VA examiners' opinions, taken in combination, are probative, because they are based on an accurate medical history and provide explanations that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

While the Veteran believes his currently diagnosed neck condition is related to service, or in the alternative, is secondary to his service-connected back disability, he is not competent to provide an etiology in this case. Though the Veteran may be competent to describe the particular symptoms from which he suffers, determining the etiology of a neck condition requires specialized medical education/knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, including the August 2016, July 2018 and April 2021 VA examiners' opinions.

Further, to the extent the Veteran contends his neck condition began in June 1973 and continued thereafter, such as contention would largely not credible as it is undermined by the absence of any report of symptomatology, including neck pain, until many years after separation from service, as well as objective evidence of record to the contrary. Indeed, as discussed above, the Veteran's STRs do not reflect the existence of a chronic neck disability but do reflect other complaints. Further, the Veteran also has not consistently reported his neck condition onset in June 1973, as for example, the August 2016 VA examiner documented the Veteran did not report an injury to his neck.

In sum, the evidence is against a finding the Veteran has a diagnosis of a neck condition that is etiologically related to service or secondary to a service-connected low back disability. As the evidence is not in approximate balance but is persuasively against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

2. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected low back disability

The Veteran contends that his currently diagnosed right hip disorder is related to service, or in the alternative, is caused by or aggravated by his service-connected back disability. Specifically, in his February 2007 application for benefits, the Veteran indicated his right hip condition began in June 1973.

The Veteran's STRs are silent for any complaints or treatment for a right hip condition. Specifically, a May 1973 in-service examination, conducted in conjunction with the Veteran's separation from active duty, found in pertinent part, the Veteran's lower extremities, as relevant to as a right hip condition, were clinically normal upon examination, which weighs against a finding of an in-service injury or event. Similarly, examinations dated in March 1987, June 1991, and December 1995, obtained in conjunction with the Veteran's service in the Puerto Rico Army National Guard, also found in pertinent part, the Veteran's lower extremities, as relevant to as a right hip condition, were clinically normal upon examination, which again weighs against a finding of an in-service injury that persisted. In this regard, the Board finds that if the Veteran had experienced continuous symptomology related to his right hip condition, it would have been reasonable for him to have reported as he did report other complaints, such as a back injury, as documented in a March 1973 STR, and that he hit his head, as documented in an April 1973 STR. Buczynski, 24 Vet. App. at 224.

However, there are various post service right hip diagnoses in the available medical records. A January 2008 VA physical medicine rehab note shows the Veteran complained of recurrent hip pain. He reported he first noticed the pain about 7 years prior after he got up from a squatting position while cleaning up after his dog. He stated that he had had the pain since then while walking but it worsened so he decided to see a doctor. On examination he had symptoms of decreased range of motion and tenderness on palpation in the right hip indicating iliotibial band syndrome with possible trochanteric bursitis.

A January 2016 VA pharmacotherapy note shows a diagnosis of hip arthralgia
224.

A January 2016 VA pharmacotherapy note shows a diagnosis of hip arthralgia in the list of problem conditions.

An August 2016 VA hip conditions examination shows a diagnosis of right hip tendonitis. The Veteran reported that he could not remember when the right hip condition began, and he denied injury to it. He did state the condition has progressively worsened and that prolonged standing and walking exacerbate the condition. The examiner opined it is less likely than not the Veteran's right hip condition was caused by an in-service injury, event or illness. The rationale provided was that there was no clinical or objective evidence or a right hip condition. The examiner also stated the STRs are silent for treatment, diagnosis or follow-up in a consecutive manner. Lastly, the examiner stated the current hip condition began after active service and was therefore unrelated to service.

A March 2017 VA addendum opinion found it was less likely than not the Veteran's right hip condition was incurred in or caused by service. The rationale was that the Veteran's STRs are silent for complaints or treatment for a hip condition. The examiner also noted a May 2007 VA general examination included a hip x-ray that showed no fractures, dislocations, or evidence of a hip condition on examination. The examiner also noted the Veteran's January 2008 report that the right hip pain was first noticed about 7 years prior and that the current condition dates to 2016, years after active duty. The examiner opined that it was less likely than not the Veteran's right hip condition is proximately due to or the result of the Veteran's service-connected back disability. The rationale being the right hip tendonitis and lumbar DDD are different disease entities with different pathophysiological processes unrelated to each other and at different anatomical positions. The examiner went on to state that the lumbar condition affects the osseous structure of the spine while the current right hip condition is an extra articular lesion, and the medical literature does not support a causal relationship between the conditions.

A July 2018 VA hip examination reflects a diagnosis of right trochanteric pain syndrome, diagnosed at the examination. The Veteran again reported he did not remember any specific trauma in service but the stated he had many traumas to his body as an infantryman jumping off trucks, landing on the ground after jumping from rappel lines, and other soldiering activities. He also reported that his back pain goes into his hip. The Veteran reported falling off a ladder at home in 2001 and falling on his right side. The examiner opined it was less likely than not the right hip condition was incurred in or caused by service. The rationale provided was that after careful review of the STRs and VA medical records, no hip injury, complaint or condition is documented in the STRs, and the VA records show no hip condition for several years after separation. As for secondary service connection, the examiner opined it was less likely as not the Veteran's right hip trochanteric bursitis, which the examiner stated is anatomically unrelated to the lumbar disability, was caused by lumbar DDD or that having lumbar DDD predisposes the Veteran to having trochanteric bursitis. The examiner also opined the right hip condition is less likely as not aggravated by lumbar DDD, as trochanteric bursitis is frequently caused by direct trauma to the trochanter, leg length discrepancies, or bad posture, and the lumbar DDD has not caused any of these conditions.

An April 2021 VA hip examination reflects a diagnosis of right trochanteric pain syndrome. The Veteran reported that 20 years ago he began having right hip pain and that he woke up one day with right hip pain with no associated trauma. He stated the right hip pain was not associated with the 1972 in-service incident when he hurt his low back. The examiner stated the Veteran's lay statements, previous VA examinations, and the prior 2021 remand were carefully reviewed. The examiner opined it was less likely than not the Veteran's right hip condition was related to service. The rationale was that at the current examination, the Veteran reported that the onset of his right hip pain was 20 years ago and was unrelated to the 1972 fall and trauma to his low back. Additionally, the examiner noted a right hip x-ray was ordered in May 2007 due to right hip joint pain, several years after service, and showed no clinical evidence of a right hip condition. The examiner noted that the Veteran's reports of jumping off trucks as an infantryman were taken into consideration, but the Veteran clearly stated his right hip pain began 20 years ago and not associated with any trauma. The examiner also opined it was less likely than not the right hip condition was related to or aggravated by the service connected lumbar disability. The rationale provided was that the medical evidence supports the fact that these are different disease entities with different anatomical sites and different bony structures and nerve supplies that are unrelated to each other anatomically and by pathophysiology. Lastly, the examiner stated there is no evidence the right hip condition has been aggravated by the lumbar condition.

The August 2016, March 2017, July 2018 and April 2021 VA examiners' opinions, taken in combination, are probative, because they are based on an accurate medical history and provide explanations that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304.

While the Veteran believes his currently diagnosed right hip condition is related to service, or in the alternative, is secondary to his service-connected back disability, he is not competent to provide an etiology in this case. Though the Veteran may be competent to describe the particular symptoms from which he suffers, determining the etiology of a right hip condition requires specialized medical education/knowledge or training which the Veteran is not shown to have. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence, including the August 2016, March 2017, July 2018 and April 2021 VA examiners' opinions.

Further, to the extent the Veteran contends his right hip condition began in June 1973 and continued thereafter, such as contention would largely not credible as it is undermined by the absence of any report of symptomatology, including right hip pain, until many years after separation from service, as well as objective evidence of record to the contrary. Indeed, as discussed above, the Veteran's STRs do not reflect the existence of a chronic right hip disability but do reflect other complaints. Further, the Veteran also has not consistently reported his right hip condition onset in June 1973. Specifically, as discussed above, a January 2008 VA physical medicine rehab note documented the Veteran reported he first noticed right hip pain about 7 years prior after he got up from a squatting position while cleaning up after his dog, which would provide for an onset date in 2001.

In sum, the evidence is against a finding the Veteran has a diagnosis of a right hip condition that is etiologically related to service or secondary to service-connected low back disability. As the evidence is not in approximate balance but is persuasively against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. at 53; Ortiz, 274 F.3d at 1364.

M. ESPINOZA

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Mitchell, 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.

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