Citation Nr: 1300368 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-32 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a disorder of the cervical spine, including as secondary to the service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for degeneration of cervical vertebrae, claimed as a cervical spine disorder. In February 2011, this matter was remanded for further development. In a September 2012 rating decision, the RO increased the disability evaluation for depression to 100 percent, effective November 16, 2011; granted entitlement to individual unemployability, effective November 16, 2011; and established basic eligibility to Dependents' Educational Assistance, effective November 16, 2011. These matters are not in appellate status and are not before the Board. FINDING OF FACT A cervical spine disorder is not the result of an in-service disease or injury, and is not the result of, related to, or proximately caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a disorder of the cervical spine, including as secondary to the service-connected lumbar spine disability, have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with VCAA notice with regard to his claim for service connection a cervical spine disorder in a January 2009 letter. The letter informed him of what evidence VA would obtain, what evidence he was expected to provide, and of what assistance VA could provide in obtaining evidence. In addition, the letter informed him that he should submit any information relevant to his claim. The letter provided proper preadjudication notice in accordance with Pelegrini 18 Vet. App. 112. In addition, the letter provided proper preadjudication notice in accordance with Dingess 19 Vet. App. 473. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of his claim. The Veteran's service treatment records, private treatment records and VA treatment records have been obtained. Social Security Administration (SSA) records have also been obtained. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that is not already associated with the claims file. Additionally, the Veteran was provided a VA examination (addressing the cervical spine) in July 2011. The examination report included review of the claims file as well as clinical examination with opinion by an appropriately qualified healthcare provider, and, in turn, is adequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). There has been substantial compliance with the February 2011 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). In the February 2011 remand, the Board directed the agency of original jurisdiction (AOJ) to provide a release for records associated with a pre-service hospitalization for injuries sustained in a motor vehicle accident in 1963, and to provide appropriate releases for any other care providers who may possess additional pertinent evidence. In addition, the AOJ was to ensure that all relevant records of VA treatment were associated with the claims file, and the Veteran was to be scheduled for a VA examination of the cervical spine. In April 2011, the Veteran was sent a notification letter pursuant to the Board remand. In June 2011, a response was received from Weirton Medical Center indicating that no records were found for the Veteran. As noted, VA treatment records have been associated with the claims file, and the Veteran was afforded a VA examination in July 2011. After reviewing the claims file and examining the Veteran, the examiner offered an opinion with rationale that is adequate for rating purposes. Accordingly, there has been substantial compliance with the February 2011 Board remand directives. D'Aries, 22 Vet. App. 97, 104. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria, Factual Background and Analysis Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). Because service connection for a disorder of the cervical spine is not being granted, it is not necessary to determine which version of the regulation is applicable. Generally, Veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. The United States Court of Appeals for the Federal Circuit(Federal Circuit) has held that 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (a legal concept determining whether testimony may be heard and considered) and credibility (a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that service connection is warranted for a cervical spine disorder because his degeneration of cervical vertebrae was aggravated by his service in the Navy as a yeoman. Specifically, he asserts that as a yeoman he would spend long periods of time sitting in front of a typewriter which aggravated his spine and neck. He further asserted that he was seen numerous times, while in the service, for both low back pain and unspecified back pain. The Veteran's representative has also raised the issue of service connection for disability of the cervical spine as secondary to the service-connected lumbar spine disability. His July 1964 service enlistment examination is negative for any relevant abnormalities and he denied having arthritis, or bone, joint, or other deformity in an accompanying Report of Medical History. Service treatment reports involving the neck include an entry in June and September 1965 regarding a boil on the back of the Veteran's neck. It appears the boil was treated, with no residual neck pathology. In October 1966 the Veteran was being followed at an in-service clinic because of chronic back pain. At that time the Veteran reported that he was involved in a truck accident prior to service in 1963 and injured his head, back and knees. He was requested to obtain such records from his civilian doctor, but he never produced the records. Nevertheless, he was treated for symptoms associated with his lumbar spine. In a November 1966 clinical record, the Veteran complained of "Pains up and down spinal cord" since the 1963 truck accident. He described that the pain as a poker up and down his legs and spinal cord on standing up, he also described low back pain on lying supine. The impression was no organic basis for back complaints of atypical nature. There was no specific mention of symptoms related to the neck or cervical spine. In a December 1966 clinical record, it was noted that the Veteran had a history of back trouble in the lumbar area, and x-rays showed no apparent trouble from an old injury suffered in 1963. He had an operation on his left ear and was having severe pain on the left side of his neck. It was noted that nothing could be found wrong with the back or neck at that time. The remaining service treatment records are negative for any complaints, treatments or diagnoses related to a cervical spine or neck disorder. The January 1967 service discharge examination is negative for any abnormalities of the spine or other musculoskeletal. In a September 1985 report of a private clinic, where the Veteran was examined for SSA disability purposes, examination of the back and spine revealed full range of motion of the cervical, thoracic and lumbosacral spine. There was no paraspinous muscle tenderness or spasm. Examination of the musculoskeletal system revealed full range of motion of all of joints without evidence of joint deformity. It was noted that he was able to get on and off of the examining table and around the office without any difficulty. He was able to walk on his heels and his toes without any difficulty. The impression, in pertinent part, was history of joint pain. At an SSA hearing held in February 1986 the Veteran testified that he was unable to work due to the residuals of his heart impairment. He also testified that he had arthritis in his knees, left shoulder, and left elbow. There was no mention of an inability to work due to his cervical spine disorder, nor that he had arthritis of the spine. In June 1997 the Veteran underwent MRI [magnetic resonance imaging] with MRA [magnetic resonance angiography] of the head and neck to evaluate for CVA [cerebrovascular accident] and carotid stenosis. Evaluation of the source images demonstrated no focal stenosis or occlusion. The impression was large MCA infarction on the right with edema which produced only minimal edema. There was a corresponding area of highly significant stenosis on the cerebral MRA. On February 2006 VA examination, the Veteran reported that at the age of 17 he had a fall while on the ship and began to experience significant low back and mid-back pain. He also reported that he was involved in a serious motor vehicle accident involving a large truck at age 16, with significant back pain which had resolved completely prior to his enlistment into the service. He reported having multiple falls most of which had been secondary to TIAs [transient ischemic attacks]. He stated that he had one stroke and at least seven TIAs. There were no examination findings reported for the cervical spine. The impression was lumbar cervical strain and overlying degenerative joint disease. The examiner noted that it is as likely as not that the Veteran's medical condition was certainly worsened by his injury while on active duty. To what degree the motor vehicle accident played into this is unknown, however, since the Veteran felt he had resolved his problem completely prior to enlisting in the service, it is as likely as not, not the primary issue. The examiner further stated that it appeared that the Veteran's subsequent fall and continued pain from that point on has been his major problem. In a May 2006 VA ambulatory care note, it was noted that the Veteran complained of low back pain, from the low back to the neck area. He stated that the onset of the pain was in 1964 and had been present ever since that time, and had been gradually getting worse. In addition, in May 2006, the Veteran was seen at VA neurosurgery clinic with complaints of pain of the spine, including the neck and low back. It was noted that he had a history of CVA, residual left-sided weakness and sensory impairment. X-rays of the cervical spine in May 2006 shows degenerative changes most prominent at C5-6. MRI showed spondylitic bulge C5-6 that is impinging upon and flattening the ventral, moderate broad based central disc protrusion C4-5 slightly greater to the right which is touching but not significantly deforming the ventral cord, and spondylitic bulge C3-4 greater to the right which is touching but not significantly deforming the ventral cord. In a June 2006 VA neurosurgery consult note, the Veteran again reported pain in the spine from the low back to the neck area. He reported that the onset of the pain was after the 1963 truck accident and the pain flared in 1964 while in boot camp in the Navy, and had been present ever since, and was gradually getting worse. He also reported a history of CVA with residual left-sided weakness and sensory impairment. In a September 2009 VA pain follow-up clinic note, the Veteran complained of low back pain. He described the pain as sharp shooting pain in the midline lumbar paraspinals and travels up to the neck and down into the hips. In a February 2010 VA neurosurgery follow-up clinic note, it was noted that the Veteran was evaluated for neck pain and possible weakness; he had a stroke 15 years ago that affected the left side of his body. The impression, in pertinent part of a January 2010 MRI was cervical spondylosis with stenosis at C3-4. On July 2011 VA examination, the examiner noted review of the claims file and medical records. The Veteran reported a history of cervical spine disability that had its onset in 1963. He reported he was involved in a motor vehicle accident in 1963 prior to entering active duty service. In that accident, he was thrown out of a truck about 300 yards and landed on the left side of his head and the left knee. He stated that he feels that his neck got worse during service because he began experiencing neck pain while in boot camp. MRI of the cervical spine shows an impression of multilevel spondylosis, most prominent at C5-6, not significantly changed from prior study of January 2010, and questionable signal abnormality in the cord at C5-6. The diagnosis was multilevel cervical spine degenerative joint disease. The examiner opined that the Veteran's cervical spine degenerative joint disease is less likely as not (less than 50/50 probability) caused by, aggravated by, or a result of service or in any other way causally related to service. By rationale, the examiner stated that the Veteran does not have a current disability of the cervical spine. He has clinical evidence of cervical spine degenerative joint disease. The records do not show any evidence or complaints as it relates to the cervical spine until 2005. The Veteran was shown to complain of pain to the left neck in December 1966 after he had incision and drainage of an infected sebaceous cyst on the left side of the neck near the left ear. That was a minor surgical procedure in which a small incision was made to puncture the skin. That was the only evidence in the service treatment records in which there was a report of left neck pain. There is no medical evidence which supports that such procedure causes cervical spine degenerative joint disease. There is no evidence in the claims file or service treatment records of a cervical spine disability which pre-existed the Veteran's military service. The Veteran's multilevel cervical spine degenerative joint disease had no relationship to his service-connected lumbar spine degenerative joint disease/degenerative disc disease. Although the Veteran reported a symptom of pain which radiates from the lower back to the neck that is not the cause of his cervical spine degenerative joint disease. There is no medical documentation which supports cervical spine degenerative joint disease as it related to lumbar spine degenerative joint disease/degenerative disc disease. The Veteran's lumbar spine degenerative joint disease is not a systemic illness, therefore there is no cause and effect as it relates to his cervical spine degenerative joint disease. There is no documentation or annotated complaints of pain to the cervical spine until 2005, which is 30+ years post service. In May 2006 a cervical spine MRI showed evidence of multilevel cervical spine degenerative joint disease, most prominent at C5-6. The Board notes that it is undisputed that MRI of the Veteran's cervical spine shows evidence of multilevel cervical spine degenerative joint disease. The question presented here, however, is whether the Veteran's current disorder of the cervical spine is related to his active duty service. The Veteran's current statements indicating a disorder of the cervical spine related to service, made many years after the fact, are inconsistent with the contemporaneous evidence. On VA examination in July 2011 he reported the onset of cervical spine disability in 1963 that worsened during service in boot camp. In this regard his service treatment records show no suggestion of any cervical spine or neck problems during his separation examination in January 1967. Furthermore, when he was examined for SSA disability purposes in September 1985 he had no complaints associated with the cervical spine; the examiner noted full range of motion of the cervical spine and no evidence of joint deformity. Even at an SSA disability hearing in February 1986 he did not testify that he had any impairment related to his neck or cervical spine. The Board notes that while the Veteran, in 2006, reports the onset of neck pain in 1964 that has been present since that time, as noted, the evidence clearly establishes that a neck or cervical spine disorder was not present in service. The separation examination demonstrates that medical personnel were of the opinion at that time that there was no disorder of the cervical spine. Moreover, the report does not suggest that the Veteran himself even voiced complaints of a neck or cervical spine disorder at that time. This suggests to the Board that the Veteran did not in fact believe he suffered from a cervical spine impairment at that time as it is reasonable to expect that he would have reported such to military medical personnel during his separation examination. After all, the express purpose of the exit examination was to document any ongoing service-related problems. The Veteran's failure to report pertinent complaints at the time of discharge examination diminishes the credibility of his current assertions (made many years after the fact in the course of seeking monetary benefit). Both the Board and the January 2011 VA examiner considered the January 1967 service separation examination report to be probative evidence of the absence of pertinent complaints, or cervical spine pathology. Thus, the Veteran's assertions of continuity since service are found to be not credible evidence of such in light of the negative separation examination report and no report of a neck or cervical spine disorder on SSA disability examination in February 1986. Therefore, the Board finds that service connection for disorder of the cervical spine on the basis that it became manifest in service and persisted since is not warranted. As there is no competent evidence that arthritis was manifested in the first postservice year, there is also no basis for considering (and applying) 38 U.S.C.A. § 1112 chronic disease presumptions (for arthritis). Regarding whether the Veteran's cervical spine disorder is otherwise related to his service, the only competent evidence in the record that addresses this question is that of the July 2011 VA examination report. In the context of the totality of the evidence and information, VA examiner concluded that the Veteran's claimed disorder of the cervical spine is less likely as not (less than 50/50 probability) caused by, aggravated by or a result of service or in any other way causally related to service. In reaching this conclusion, the examiner interviewed the Veteran, examined him, and reviewed his claims file. In particular, she noted that there is no documentation or annotated complaints of pain to the cervical spine in service or for many years post service and the minor surgical procedure of incision and drainage of an infected sebaceous cyst on the left side of the neck did not cause the Veteran's cervical spine degenerative joint disease. No competent evidence of record contradicts the July 2011 VA examiner's opinion. Nor is there competent evidence of record that indicates that the Veteran's current disorder of the cervical spine is of a nature and etiology such that it is related to military service many decades ago. The Board observes that on February 2006 VA examination, the examiner opined that it is as likely as not that the Veteran's medical condition was certainly worsened by his injury while on active duty. Here the examiner was referring to the Veteran lumbar spine for which he is already service-connected. The history noted in that examination report referred to a lumbar spine injury, not a cervical spine injury. That examination was conducted for the purpose of evaluating the Veteran's complaints of low back pain. It does not appear from the record that the examiner conducted examination of the Veteran's cervical spine. Therefore, it cannot be reasonably concluded that the examiner was opining that there was a link between a current cervical spine disorder and service. Regarding the Veteran's contention that his disorder of the cervical spine is secondary to his service-connected lumbar spine disability, the only competent evidence in the record that addresses this contention is the opinion of the July 2011 VA examiner. In the context of the totality of the evidence and information, VA examiner concluded that the Veteran's multilevel cervical spine degenerative joint disease has no relationship to his service-connected lumbar spine degenerative joint disease/degenerative disc disease. In particular she noted that although the Veteran reported symptoms of pain which radiated from the lower back to the neck, that is not the cause of his cervical spine degenerative joint disease; and there is no medical documentation which supports cervical spine degenerative joint disease as related to lumbar spine degenerative joint disease/degenerative disc disease. The examiner noted that the Veteran's lumbar spine degenerative joint disease is not a systemic illness, therefore there is no cause and effect as it relates to his cervical spine degenerative joint disease. The Board finds that the language used by the examiner (for example, that there was "no relationship") was broad enough to rule out a relationship based on either causation or aggravation. No competent evidence of record contradicts the July 2011 VA examiner's opinion in this regard. The only evidence in favor of a link between the Veteran's disorder of the cervical spine and service, or as secondary to his service-connected lumbar spine disability, is the Veteran's own assertions, which the Board has found to be unpersuasive in light of the other evidence of record. Notably, as a lay person, while the Veteran is competent to testify as to the symptoms he experiences (such as pain), it is beyond his competence to opine that a cervical spine disorder is related to his service or proximately due to a service-connected disability. Such questions are medical in nature and may not be resolved by mere lay observation; the Veteran does not have the training to opine regarding medical etiology. See Jandreau, 492 F.3d 1372. The Board acknowledges the Veteran's statements during the July 2011 VA examination that he was thrown out of a truck about 300 yards and landed on the left side of his head and left knee in the 1963, and that he began experiencing pain in his neck from the accident, while in boot camp. However, to the extent the Veteran may feel that a cervical spine disorder was aggravated during service, this is inconsistent with the service enlistment and separation examination reports showing no complaints or medical findings of any such neck or cervical spine problems. The Board further acknowledges that the alleged in-service occurrence (experiencing neck pain in boot camp) took place several decades prior to the earliest time that the Veteran ever sought evaluation for the claimed cervical spine disorder. The Veteran's earliest post-service showing of symptoms of a possible cervical spine disorder was in 2006, approximately 39 years following active duty service. The Board emphasizes the multi-year gap between discharge from active duty service (1967) and initial contemporaneous documentation of reported symptoms related to a disorder of the cervical spine in 2006. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). Moreover, it is noteworthy that the Veteran had a stroke in 1997 and he has also had at least seven TIAs. It was noted in the February 2006 VA examination report that he has had multiple falls, most of which were secondary to the TIAs. In a February 2010 VA neurosurgery follow-up clinic note shows the Veteran was evaluated for neck pain and possible weakness and it was noted that he had a stroke 15 years earlier that affected the left side of his body. It is also noteworthy that the Veteran did not file a claim for service connection for a cervical spine disorder for many years after service, which suggests that he did not believe that his cervical spine disorder was service-related for many years. This delay in filing a claim also diminishes the credibility of his current assertions that he had a cervical spine disorder related to service for many years. After thorough review of the evidence currently of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a disorder of the cervical spine. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for disorder of the cervical spine is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a disorder of the cervical spine, including as secondary to the service-connected lumbar spine disability is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs