Citation Nr: 1322673 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-28 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a disability of the cervical spine. 2. Entitlement to service connection for a disability of the lumbar spine. REPRESENTATION Veteran WITNESSES AT HEARING ON APPEAL The Veteran, L.P., and Ms. F. ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from April 1955 to March 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. In a decision of September 2010, the Board reopened the previously denied claims of service connection for disabilities of the cervical and lumbar segments of the spine, and it remanded the claims to the RO for adjudication on the merits. In May 2011, the Board again remanded the claims for further development. In October 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument, which the Veteran's representative did in December 2012. In February 2013, the Board found that the VHA expert's opinion was inadequate and remanded the claim for further development. As the requested development has been completed, no further action is necessary to comply with the Board's remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a statement in June 2011, the Veteran raised a new and material evidence claim for posttraumatic stress disorder, which is referred to the RO for appropriate action. FINDINGS OF FACT 1. The current disability of the cervical spine, degenerative disc disease with fusion and degenerative joint disease, was not affirmatively shown to have had onset during service; degenerative joint disease as a chronic disease was not manifested to a compensable degree within one year after the separation from service; and the current disability of the cervical spine, degenerative disc disease with fusion and degenerative joint disease, is not related to an injury, disease, or event in service. 2. The current disability of the lumbar spine, degenerative disc disease and degenerative joint disease, was not affirmatively shown to have had onset during service; degenerative joint disease as a chronic disease was not manifested to a compensable degree within one year after the separation from service; and the current disability of the lumbar spine, degenerative disc disease and degenerative joint disease, is not related to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for disability of the cervical spine, degenerative disc disease with fusion and degenerative joint disease, have not been met. 38 0U.S.C.A. §§ 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for disability of the lumbar spine, degenerative disc disease and degenerative joint disease, have not been met. 38 0U.S.C.A. §§ 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter dated in February 2007. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). No further VCA notice is required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has attempted to obtain the Veteran's service treatment records and service personnel records, however such attempts were unsuccessful. The RO made a formal finding of the unavailability of the service records, and notified the Veteran by letter in August 2006. VA records and private medical records have been obtained. The Veteran was afforded VA examinations in June 2011 and in April 2013. As the reports of VA examinations were based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the VA medical evidence is adequate to decide the claim. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In October 2012, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). The Veteran and his representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument. The Veteran and his representative responded with additional argument. To the extent, the VHA expert was unable to render an opinion on the clinical significance of scoliosis, the Board found that the opinion was inadequate, which was the reason the Board requested a VA examination in April 2013. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1131 (peacetime service). Generally, to establish entitlement to VA disability compensation, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including degenerative joint disease or arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran has peacetime service only, the provisions pertaining to combat in 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Whereas here the service treatment records are unavailable, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Facts The service treatment records are unavailable and presumed destroyed in a fire in 1973 at the federal depository for service records. After service in April 1993, Reentry Vocational Services noted that the Veteran was injured in an accident. Although the record did not describe the accident in detail, including the date of the accident and the type of injuries, it was noted that the Veteran had suffered considerable pain that limited him physically and that the physical limitations would prevent the Veteran from returning to the heavy work he had done. The rehabilitation counselors noted that at time of the accident, the Veteran was operating a small business cleaning windows, which was physically demanding and that it was not expected that the Veteran would be able to return to his work. In May 1993, the Veteran stated that he had undergone back operations in August 1991, October 1991, and August 1992. In October 1999, VA record shows that the Veteran complained of chronic low back pain. He also complained of increased neck pain in the preceding few months and that he a cervical spinal fusion in 1992. In March 2002, history included two back surgeries in 1992 and a neck fusion in 1993. In a letter in August 2005, the Veteran stated that his back condition was worse at discharge from service because of the work he did in service. He also stated that his neck was made worse by service. In November 2005, a VA physician, S.S., MD, stated that the Veteran suffered from chronic back pain, chronic neck pain, and scoliosis with neck and back fusion. She stated that the Veteran is no longer able to work on account of the conditions. In July 2007 in the notice of disagreement, the Veteran stated that, while stationed in Korea, he worked in supply shipping and receiving and that he loaded and unloaded trucks. He stated that he suffered from scoliosis prior to service and that his back and neck became worse as a result. He stated that he was prescribed pills for his pain. In June 2010, the Veteran testified that his military occupational specialty was in supply, dealing with clothing and textiles, and that he worked in a warehouse loading and unloading trucks. He stated that he had scoliosis when he entered service, and that this condition was noted on his entrance examination. He stated that he always had problems with his back, but that he hurt his back and neck again while lifting and unloading boxes during service. He stated that he did not seek treatment, as there was not a doctor nearby. Instead, he saw a local corpsman and was prescribed painkillers for his pain. He stated that he hurt his neck due to the overhead lifting and that this injury required a cervical fusion. Since service, he stated that he had two surgeries on his back. The Veteran stated that his back injuries stemmed from lifting in service and from the curvature of his spine. The Veteran's friend, L.P., testified that the Veteran was given the nickname "Hump" on account of his back problems. L.P. stated that the Veteran frequently sought treatment for his back, going to the local drug store for medication. On VA examination in June 2011, the Veteran stated that he worked in supply in Korea and that he lifted heavy items. He stated that he was prescribed aspirin by a corpsman. The Veteran also stated that he was told that he had scoliosis upon entry to service. The Veteran stated that his neck and spine did not begin bothering him until some time in the early 1990s. The diagnoses were cervical degenerative disc and joint with fusion at C4-6 fusion and lumbar scoliosis with degenerative disc and joint disease. The VA examiner stated that the Veteran had a history of asymptomatic idiopathic scoliosis before service and a history of washing windows after service, which could strain a scoliotic spine. Based on a 35-year history of washing windows and an accident in the 1990s that predated the cervical and lumbar surgeries, the VA examiner concluded that it was less likely than not that the Veteran's current neck and back disabilities were solely related to service. In June 2012 in a letter, the Veteran stated that he suffered from scoliosis prior to service. He stated that during service he regularly lifted weights of fifty to one-hundred pounds above his head. He stated that this strained his neck and back and made his conditions worse. He stated that because he could not find other jobs on account of scoliosis, he started a window washing company. He stated that his duties were light and that his coworkers performed the heavy lifting. He stated that his scoliosis later deteriorated to the point that he had to have surgery on his neck and back. In July 2012 in letter, the Veteran detailed further in-service activities that he felt aggravated his scoliosis. He also again stated that he did "light duty" in his window washing operation. In October 2012, the VHA expert expressed the opinion that it was less likely than not that the current neck and back disabilities were related to the Veteran's duties, handling supplies. As for scoliosis, the VHA expert stated that as there was no documentation as to the nature of the curvature of the spine, he could not render an opinion on the clinical significance of scoliosis and the current disabilities. On VA examination in April 2013, the Veteran stated that he did heavy lifting in service. He also stated that his back did not begin to bother him until the 1990s. The VA examiner noted that the Veteran appeared to have a worker's compensation injury and a motor vehicle accident following discharge from service. The VA examiner ordered X-rays. After which the VA examiner stated that the X-rays showed a 10 degree levoscoliosis (left curvature) of the mid-thoracic spine, and a 10 degree dextroscoliosis (right curvature) of the lumbar spine, which compensated one for the other, resulting in a vertical spine. The VA examiner stated that 10 degrees of curvature in any direction is a minor curvature and that the criteria for scoliosis was a curvature exceeding 10 degrees, and that the Veteran's scoliosis was borderline normal. The VA examiner noted that the curvature was idiopathic, the most common kind of scoliosis. The VA examiner concluded that it was less likely than not that scoliosis resulted in the current disabilities of the cervical and lumbar segments of the spine. The VA examiner stated that the current disabilities were more likely than not related to post-service injuries, physical labor, and aging. Analysis Although the service treatment records are unavailable, the Veteran testified that his military occupational specialty was supply and he worked in a warehouse and that he hurt his neck and back by lifting supplies. He stated that he had scoliosis when he entered service. The Veteran is competent to describe hurting his neck and back with lifting in service, which is within the realm of the Veteran's personal experience. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). As the service treatment records are missing, and on the basis of the Veteran's testimony that he did not seek treatment in service and that he was only given pain medication, the evidence is inconclusive on the theory of service connection, based on affirmatively showing inception of a disability of the cervical spine, degenerative disc disease with fusion and degenerative joint disease, and a disability of the lumbar spine, degenerative disc disease and degenerative joint disease, in service under 38 C.F.R. § 3.303(a). The Veteran's duties in service, which required the lifting of supplies, does answer the question of what happened, but does not answer the questions of current disabilities of the cervical spine, degenerative disc disease with fusion and degenerative joint disease, and of lumbar spine, degenerative disc disease and degenerative joint disease, or of a relationship or nexus to a lifting-type injury in service and the current disabilities of the cervical and lumbar segments of the spine. Competent and credible evidence is still required to establish the current disabilities and nexus to service. As there is competent evidence of a lifting-type injury in service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) are addressed. As for degenerative disc disease the cervical and lumbar segments of the spine, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, because degenerative disc disease is not a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply to a disease not listed in 38 C.F.R. § 3.309(a)). Unlike degenerative disc disease, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do apply to degenerative joint disease or arthritis of the cervical and lumbar segments of the spine, because degenerative joint disease or arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker, at 1338-40. As the service treatment records are missing, and on the basis of the Veteran's testimony that he did not seek treatment in service and that he was only given pain medication, the evidence is inconclusive on the theory of service connection, based on chronicity under 38 C.F.R. § 3.303(b). As for continuity of symptomatology, the elements to establish continuity are: (1) that the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology noted in service; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker, at 1335-36, 40 (overruling in part Barr v. Nicholson, 21 Vet. App. 303, and Savage v. Gober, 10 Vet. App. 488, 497 (1997) to extent that 38 C.F.R. § 3.303(b) was applied to diseases not listed in 38 C.F.R. § 3.309(a), while addressing the elements of continuity of symptomatology). The Veteran is competent to describe hurting his neck and back by lifting supplies in service and to state that his current neck and back problems are a continuation of what happened in service. 38 C.F.R. § 3.159; Layno, at 71. To this extent, the Veteran's lay statements and testimony are competent evidence of postservice continuity of symptomatology, which is an expression of a causal relationship or nexus between the current disabilities and continuity of symptoms. As the statements and testimony are inference based on facts, it is an opinion rather than a statement of fact. The question then is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current disabilities of the cervical and lumbar segments of the spine and the postservice symptomatology he avers. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran as lay person is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Degenerative joint disease or arthritis of the cervical and lumbar segments of the spine is not simple medical condition the Veteran is competent to identify, because the diagnosis falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation, which comes through sensory perception. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify degenerative joint disease or arthritis. Also degenerative joint disease or arthritis is not a type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, degenerative joint disease or arthritis is more analogous to an internal process such as rheumatic fever than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, degenerative joint disease or arthritis is not a type of condition under case law that has been found to be capable of lay observation. As degenerative joint disease or arthritis is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current degenerative joint disease or arthritis of the cervical and lumbar segments of the spine and the continuity of symptoms that the Veteran avers. For these reasons, the Veteran lay opinion is not competent evidence of a causal relationship or nexus between the current disabilities and the postservice symptomatology. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology. As the evidence is not admissible, the Board need not reach the credibility of the evidence. Although service connection for disabilities of the cervical spine, degenerative disc disease with fusion and degenerative joint disease, and of the lumbar spine, degenerative disc disease and degenerative joint disease, is not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b), service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). The same rationale for finding that degenerative joint disease is not the type of condition that the Veteran is competent to identify based on personal observation either as a simple medical condition under Jandreau, or by case law, applies to degenerative disc disease. Also the rationale for finding that the Veteran is not competent to offer a medical opinion on what is not personally observable applies to degenerative disc disease. Where, as here, there is a question of the presence or a diagnosis of disabilities of the cervical spine, degenerative disc disease with fusion and degenerative joint disease, and of the lumbar spine, degenerative disc disease and degenerative joint disease, which are not capable of lay observation as a simple medical condition under Jandreau or the type of a medical condition capable of lay observation by case law, for the reasons expressed, to the extent the Veteran's lay evidence is offered as proof of the presence of the disabilities of the cervical and lumbar segments of the spine in service and since service and before 1991, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claims. Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. As for the Veteran reporting a contemporaneous medical diagnosis, after service in April 1993, history included an accident in which prevented the Veteran from returning to work, operating a small business cleaning windows. In May 1993, the Veteran stated that he had undergone back operations in August 1991, October 1991, and August 1992. In October 1999, history included a cervical spinal fusion in 1992. In March 2002, history included two back surgeries in 1992 and a neck fusion in 1993. The Veteran was asked either to submit or to authorize VA to obtain on his behalf insurance, legal, or medical records, pertaining to the postservice accident, but he did not respond to the request. In November 2005, a VA physician, S.S., MD, stated that the Veteran suffered from chronic neck and back pain and scoliosis and that the Veteran was no longer able to work on account of the conditions. As the Veteran was operating a small business before 1991 and as after the injuries from the accident, noted in 1993, prevented the Veteran from returning to work, the reasonable inference from the evidence is that the postservice accident, resulted in the back surgeries beginning in 1991, 34 years after separation from service in 1957, and well beyond the one year presumptive period for degenerative joint disease or arthritis as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. As for symptoms described by the Veteran that later support a diagnosis by a medical professional, a VA physician, S.S., MD, stated that the Veteran suffered from chronic neck and back pain and scoliosis, but did not relate the neck and back pain to an injury, disease, or event in service or to scoliosis. To the extent the Veteran associates a lifting-type injury and scoliosis to the current disabilities of the cervical and lumbar segments of the spine, the Veteran's lay opinion is not competent evidence on the question of medical causation, because the claimed disabilities are not simple medical conditions, capable of lay observation. Davidson, at 1316. For the same reason, the testimony of the witnesses are not competent evidence to the extent the testimony is offered as evidence that the current disabilities are related to an injury, disease, or event in service or to scoliosis. And it is not argued or shown that the Veteran or witnesses is otherwise qualified through specialized education, training, or experience to offer such an opinion. Since the lay opinions are not competent evidence, the opinions are excluded, that is, not admissible as evidence and cannot be considered as competent evidence favorable to the claim. The only competent medical evidence of record pertaining to causation or a nexus to service consists of the reports of VA examinations and the report of a VHA expert. On VA examination in June 2011, the diagnoses were cervical degenerative disc and joint disease with fusion and lumbar scoliosis with degenerative disc and joint disease. The VA examiner stated that it was less likely than not that the Veteran's current neck and back disabilities were solely related to service, because of an accident in the 1990s that predated the cervical and lumbar surgeries. The VHA expert expressed the opinion that it was less likely than not that the current neck and back disabilities were related to the Veteran's duties, handling supplies. As for scoliosis, the VHA expert stated that as there was no documentation as to the nature of the curvature of the spine, he could not render an opinion on the clinical significance of scoliosis and the current disabilities. On VA examination in April 2013, the VA examiner, board certified in Physical Medicine and Rehabilitation with specialization in spinal cord injury medicine, stated that the current disabilities were more likely than not related to postservice injuries, physical labor, and aging. As for scoliosis, the VA examiner stated that it was less likely than not scoliosis resulted in postservice neck and back conditions, because the degree of scoliosis was borderline normal or clinical insignificant, and that the work injuries after service more likely caused the neck and back disabilities. The medical opinions that it was less likely than not that the current neck and back disabilities were solely related to service, because of an accident in the 1990s that predated the cervical and lumbar surgeries, that it was less likely than not that the current neck and back disabilities were related to the Veteran's duties, handling supplies, and that it was less likely than not scoliosis resulted in postservice neck and back conditions, constitute competent and persuasive medical evidence against the claims. As there is no competent lay evidence on a nexus of the current disabilities to an injury, disease, or event in service, including the handling of supplies, or to scoliosis and no medical evidence in favor of the claims, the preponderance of the medical evidence is against the claims, considering the heightened obligation to consider carefully the benefit-of-the-doubt standard of proof. 38 U.S.C.A. § 5107(b); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). ORDER Service connection for disability of the cervical spine, degenerative disc disease with fusion and degenerative joint disease, is denied. Service connection for disability of the lumbar spine, degenerative disc disease and degenerative joint disease, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs