Citation Nr: 1333674 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-08 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a neck disability, to include as secondary to a service-connected disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977, and September 1990 to September 1992, with additional time served in the Army Reserves and National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the Veteran's claims. In January 2008 and July 2011, the Veteran testified at hearings before two different Veterans Law Judges. Therefore, this appeal is now being addressed by a panel, which includes the two Veterans Law Judges that conducted the Board hearings. See 38 C.F.R. § 20.707 (2013). In this regard, the Board acknowledges that the Court recently held that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). At the July 2011 video conference hearing, the Veteran waived his right to have a hearing before a third Veterans Law Judge. In Board decisions dated April 2008, July 2009, September 2011, May 2012, and April 2013, the claims were remanded for further evidentiary development. As will be discussed below, a review of the record now reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in a February 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The Veteran's currently diagnosed back disability, to include degenerative disc disease (DDD) of the lumbosacral spine, is not shown to have been manifested in service and is not otherwise attributable to his active military service. 2. The Veteran's back disability, to include DDD of the lumbosacral spine, is not caused or aggravated by his service-connected disabilities to include disabilities of the left knee and left hip. 3. The Veteran's currently diagnosed neck disability, to include DDD of the cervical spine, is not shown to have been manifested in service and is not otherwise attributable to his active military service. 4. The Veteran's neck disability, to include DDD of the cervical spine, is not caused or aggravated by his service-connected disabilities to include disabilities of the left knee and left hip. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a back disability, to include DDD of the lumbosacral spine, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. A back disability, to include DDD of the lumbosacral spine, is not proximately due to, or aggravated by, the Veteran's service-connected disabilities. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2006). 3. The criteria for an award of service connection for a neck disability, to include DDD of the cervical spine, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 4. A neck disability, to include DDD of the cervical spine, is not proximately due to, or aggravated by, the Veteran's service-connected disabilities. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the current claims, letters dated in March 2005, May 2005, and April 2008 notified the Veteran of the information and evidence needed to substantiate a claim of service connection. Specifically, he was apprised of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The April 2008 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to service connection on a secondary basis the Veteran had actual knowledge of the information and evidence necessary to substantiate the claims under that theory. His representative submitted specifically tailored argument regarding secondary service connection and it is apparent that it has been understood how to substantiate that type of claim. Moreover, the claims were most recently readjudicated in the February 2013 SSOC. Thus, any timing error for notice was cured. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). Therefore, a remand for further notification is not necessary. Regarding VA's duty to assist as to the claims on appeal, the RO obtained the Veteran's service treatment records (STRs), service personnel records, Social Security Administration (SSA) records, as well as VA and private treatment records in furtherance of his claims. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran was afforded VA examinations and/or opinions in May 2013, December 2012, November 2012, and December 2009. Although certain deficiencies will be discussed below, the medical opinions, in particular the May 2013, December 2012, and December 2009 VA medical opinions, reflect that, as a whole, the VA examiners thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered opinions which appear to be consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA examination reports are adequate as a whole for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from either disease or injury incurred during active duty for training (ACDUTRA). With respect to time periods of inactive duty for training (INACDUTRA), service connection may only be granted for injury (and not disease) so incurred. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection 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. See Jandreau, 492 F.3d at 1377. Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a "chronic disease" in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the "chronic disease" became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2013)). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the United States Court of Appeals for Veterans Claim's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, which version favors the claimant. See 38 C.F.R. § 3.310 (2006). Here, the Veteran has asserted entitlement to service connection for back and neck disabilities, which he contends are due to his military service. Specifically, he contends that he initially injured his back and neck in an in-service motor vehicle accident in 1976. See, e.g., the July 2011 Board Hearing Transcript. He stated that he subsequently injured his back while on a period of ACDUTRA and then again while stationed in Saudi Arabia during his second period of active duty service. Id. He has alternatively asserted that his back and neck disabilities are the result of his service-connected left knee and left hip disabilities. Id. For the reasons set forth below, the Board concludes that service connection is not warranted for the back or neck disability on either direct or secondary bases. The Veteran STRs confirm that he was involved in a motor vehicle accident in April 1976 at which time he sustained a neck sprain. No complaints of back problems were reported at that time. An STR dated June 1982 indicated that the Veteran complained of back pain following a weight lifting injury while performing ACDUTRA. A March 1988 STR noted the Veteran's "back trouble" following an injury at his civilian job six months prior. Multiple complaints of back pain were also documented in March 1991 in conjunction with the Veteran's treatment for kidney stones. Post-service records reveal that the Veteran complained of aching in the lateral spine during a VA examination performed in August 1995. It was further noted that he described his back problems as originating two years following his military discharge. He did not identify any complaints related to his neck at that time. Private treatment records revealed that the Veteran was involved in a motor vehicle accident in December 1999 during which his airbag deployed. X-rays of the neck and back conducted at that time were within normal limits. See the private physical therapy records dated December 1999. VA treatment records dated December 2000 documented the Veteran's complaints of back pain for one year status-post motor vehicle accident; complaints of neck pain were also noted at that time. VA treatment records dating from February 2001, May 2001, and December 2004 documented continuing complaints of back pain. In March 2005, the Veteran reported experiencing neck pain "for a long time." VA treatment records dated April 2005 noted the Veteran's complaints of chronic neck pain, which he described as originating in 1976. The Veteran was afforded a VA examination in December 2009 at which time the examiner confirmed diagnoses of cervical spondylosis and DDD of the cervical spine as well as DDD of the lumbosacral spine. When rendering an opinion as to medical nexus, the examiner stated that after reviewing the record, it was more likely than not that the injury to the neck in 1976 due to a motor vehicle accident was a whiplash injury. Additionally, the examiner stated that whiplash was a soft tissue injury. The examiner further indicated that it was also likely that the Veteran had a whiplash type injury in the December 1999 accident. As far as the Veteran's low back, the examiner observed it was likely that the Veteran had a strain type injury secondary to the in-service lifting injury. Moreover, the examiner noted that there was also said to be complaints of back pain after the injury in 1999. Furthermore, the examiner noted that, in consideration of the currently diagnosed cervical spondylosis with DDD of the cervical spine as well as L5-S1 DDD (confirmed by magnetic resonance imaging (MRI)), there was no medical evidence that whiplash injuries or strain type injuries, cause or predispose to, or accelerate the development of degenerative spine disease. The examiner therefore concluded that it was not at least as likely as not that the Veteran's current complaints were the direct and proximate result of any incident or occurrence in the military, or related or the direct and proximate result of or due to aggravation by his service-connected left knee disability. The examiner additionally noted that based upon a review of the documentation and evidence of record, to opine otherwise would require resorting to speculation. Critically, the December 2009 VA examiner failed to state a rationale as to why he believed that the Veteran's back and neck disabilities were not caused and/or aggravated by his service-connected left knee disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Hogan v. Peake, 544 F.3d 1298 (Fed. Cir. 2008) (the Board may discount the value of competent medical evidence based on factors including the lack of a definite statement as to etiology). Accordingly, the Board remanded the Veteran's claims in order to obtain another VA medical opinion. See the Board decision dated May 2012. At the time of the May 2012 Board Remand, the Veteran was service-connected for chronic left knee instability and degenerative joint disease (DJD) of the left knee, with limitation of motion and pain on motion. In a June 2012 rating decision, the AMC additionally granted entitlement to service connection for arthritis of the left hip. The Veteran was provided with an examination in November 2012; however, as the claims file was unavailable, the examiner did not provide a nexus opinion. In December 2012, the Veteran was again provided with a VA examination at which time he was diagnosed with osteoarthritis of the lumbar spine and DDD of the cervical spine. The examiner noted that the Veteran had been service-connected for a left hip disability since the Board Remand, and that this disability would be considered in the opinion along with his left knee disabilities. With respect to the question of medical nexus, the December 2012 examiner opined that there was no medical evidence that a disability in one of the lower extremities caused or contributed to DJD of either the cervical or lumbar spine. He found that none of the Veteran's cervical spine or neck complaints was in any way related to his service-connected left knee or hip. He also stated that there was no indication that giving way to a lower extremity aggravates DJD of the lumbar spine. Critically, in the April 2012 decision, the Board concluded that the examiner provided what appeared to be general statements without relating his opinions to the facts in the Veteran's case. In addition, he did not provide rationale to support these opinions. With respect to the low back, the December 2012 VA examiner did acknowledge that walking with a limp and giving way of a lower extremity due to a disability can contribute to low back pain as related to muscle strain, and that, given the Veteran's history of more than 20 years of reports of low back pain, it was difficult to state whether or not some of his complaints were related to the muscle strain of the back as opposed to arthritic changes within the facet joints of his lumbar spine. The examiner also noted that pain may be elicited with ambulation in the lower back, and that this would not be outside the normal pain produced in the lower back from DJD with any activity that places a greater degree of flexion to this area. With respect to these findings, the Board concluded that it is unclear whether the Veteran perhaps has a muscular disorder, such as back strain, caused or aggravated by the alteration of his gait due to his service-connected left lower extremity disabilities. Accordingly, in an April 2013 decision, the Board remanded the Veteran's claims for further clarification. Pursuant to the April 2013 Remand, the Veteran was afforded a VA medical opinion in May 2013 as to his back and neck disability claims. The VA examiner thoroughly reviewed the Veteran's claims file including his medical history, and determined that the Veteran "does not have a primary disability associated with the neck or back, outside of arthritis, or DDD. He likely has muscle strain and spasms which can contribute to pain, but these are a byproduct of arthritis itself. The primary pathology contributing to pain is DDD." The examiner then explained that review of the claims file demonstrates "several encounters for back pain on various occasions. Some are in conjunction with certain events, i.e., motor vehicle collision (MVC) or fall, and some are not, and are documented as mechanical low back pain. He is documented to show in his review of records in 1978 and 1982, to have no chronic back pain. His review from 1989 is checked as "normal" in regard to spine conditions and symptoms. An exam in 1978 shows notation from a doctor stating that he has no permanent damage as a result of a motor vehicle accident in 1976." The examiner continued, "[t]he Veteran is noted to have undergone an MVC while in service, with neck pain subsequently. However, follow up examinations are noted to be negative for neck pain in the years prior to the MVC in 1999." He explained, "[n]eck pain associated with an MVC, in the absence of fractures, as was the case for this Veteran, is classically whiplash. Whiplash is a condition which causes pain and spasm to the cervical musculature, but is not associated with nor does it predispose to DDD, which this Veteran suffers from. Therefore, it is less likely as not that this Veteran's back or neck disability had its onset in service, or is otherwise the result of a disease or injury in service." With respect to the question of secondary service connection, the examiner indicated, It is less likely as not that the Veteran's back and neck disabilities are caused by his service-connected left knee and left hip disabilities. There is no medical documentation linking joint pathology of lower extremities to joint pathology of the spine. The cervical spine is unaffected by gait, and this eliminates the neck pathology from being related to lower extremity conditions. The examiner continued, If a person ambulates with a gait, abnormal stress of the lumbar muscles can produce lumbar strain and spasm, however, it has not been shown to actually cause vertebral degeneration. Degenerative disc disease is an extremely common condition, is a naturally progressive disease, and the progression to having frequent low back and neck pains is typical of this disease progression. The examiner further stated, "[i]t is less likely than not that the Veteran's neck and back disability has been aggravated by his service-connected left knee and left hip disabilities." He opined, "[a]gain, the neck disability is neither caused by nor aggravated by his left knee and hip disabiities. Weight bearing does not cause the cervical spine to flex, extend, or rotate, and no lower extremity condition should cause aggravation of a cervical spine disease." The examiner continued, The lumbar spine degenerative disc disease is not aggravated beyond its natural progression by the left knee and left hip conditions. The x-ray reports from 12/2009 and 11/2012 are compared, and appear to show very stable disease from a radiographic standpoint, and this supports the statement that the disease is not aggravated by the left knee and hip conditions. He further explained, "In the event of increases in pain in the low [back] experienced with ambulation, this is not uncommon and not outside of reasonable expectations for patients with DDD of [the] lumbar spine." Lastly, the examiner concluded, "In regards to whether [the] Veteran's arthritis in his lumbar spine and cervical spine [were] caused or aggravated by his service-connected left knee and left hip disabilities, they are less likely to be aggravated by or caused by the left knee and left hip conditions." The examiner cited his previously stated rationale to support this conclusion. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez, 22 Vet. App. at 295. However, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998); see also Leshore v. Brown, 8 Vet. App. 409 (1995). In this matter, the medical evidence of record shows that the currently diagnosed back and neck disabilities are not due to the Veteran's military service, nor have these disabilities been proximately caused or aggravated by his service-connected left knee and left hip disabilities. Specifically, the Board finds the May 2013 VA medical opinion particularly probative as to the question of etiology, as it appears to have been based upon a thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Crucially, the May 2013 VA examiner concluded that the Veteran's diagnosed back and neck disabilities, to include DDD of the lumbosacral and cervical spine, are not etiologically related to his in-service neck and back symptomatology. Additionally, the examiner determined that the Veteran's back and neck disabilities are not proximately caused or aggravated by the service-connected disabilities. The rationale was substantial, thorough, and based on the overall record. The Veteran has not produced a medical opinion to refute the conclusions set forth in the May 2013 VA medical opinion concerning medical nexus and aggravation. As was explained in the VCAA section above, he has been afforded ample opportunity to present competent medical evidence in support of his back and neck disability claims. He has not done so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Thus, the May 2013 VA medical opinion stands unchallenged as competent medical evidence on the crucial questions of medical nexus and aggravation. As indicated above, the Veteran has submitted his own statements to support his claims of service connection. As a lay person, he is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr, supra; Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide medical conclusions as to whether a disability is due to his military service or proximately caused or aggravated by a service-connected disability. See Buchanan v. Nicholson, 451 F.3d 1331-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). Therefore, to the extent that he is now claiming that his back and neck disabilities are the result of his military service or are due to his service-connected disabilities, he is not competent to comment as to the etiology of the claimed disorders here as the relationship goes beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Additionally, the Board recognizes that as with 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Crucially, however, there is no evidence that the Veteran was diagnosed with DDD of the cervical or lumbosacral spine during his military service or for years thereafter. C.f., Walker, 708 F.3d at 1331. Moreover, the Veteran's contentions in support of service connection, including continuing post-service symptomatology of the currently diagnosed chronic back and neck disabilities, are contradicted by the findings of the May 2013 VA examiner who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinion. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the uncontradicted VA medical opinions, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the contentions that the Veteran's current back and neck disabilities are related to active military service. Thus, the benefit-of-the-doubt rule is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a neck disability is denied. _________________________ _________________________ J. A. Markey L. M. Barnard Veterans Law Judge, Acting Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals _______________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs