Citation Nr: 1335175 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-11 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1975 to November 1983. The Veteran had prior service in the National Guard. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. In February 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In April 2010 and September 2012, the Board remanded the Veteran's claims for further evidentiary development. The subsequent actions by the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claims have been returned to the Board for appellate proceedings. After the AMC's most recent readjudication of the claims on appeal in an April 2013 supplemental statement of the case, the Veteran submitted additional evidence in support of his claims. The evidence was accompanied by a waiver of local consideration and was signed by the Veteran. 38 C.F.R. §§ 19.9, 20.1304(c) (2012). This waiver is contained in the Veteran's VA claims file. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's current neck disabilities, diagnosed as include degenerative and postoperative changes of the cervical spine, degenerative disk disease cervical spine, status post anterior cervical decompression and fusion, with acute herniated nucleus pulposus C4-C6 and residual cervical radiculopathy, are not causally or etiologically related to active service. 3. The most probative competent evidence shows that the Veteran's preexisting low back condition, diagnosed as spondylolisthesis (spina bifida occulta) clearly and unmistakably both existed prior to service and was not permanently aggravated by active service or any incident of service, but rather, were aggravated by a July 1992 post-service, work-related injury CONCLUSIONS OF LAW 1. Service connection for a neck disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Service connection for a low back disability is not warranted. 38 U.S.C.A. § 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.304(b), 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A March 2004 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of direct service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board notes that the Veteran was not notified of how VA determines disability ratings and effective dates as per the United States Court of Appeals for Veterans Claims' (the Court's) holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), at the time of the initial adjudication of his claim. (The Court's decision in Dingess was not promulgated until March 2006, nearly eighteen months after the October 2004 rating decision.) That said, the Veteran's electronic Virtual VA file includes a notice letter dated in March 2006 in compliance with Dingess/Hartman which pertains to disability ratings and effective date elements of the claim. After the Veteran received this notice, his claims were readjudicated in supplemental statements of the case dated in December 2008, February 2009, July 2011 and April 2013. As such, there was not prejudice to the Veteran concerning the timing of these notice elements. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran's service treatment records and VA medical treatment records have been obtained. The record reflects that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA), and, as a result of a September 2012 Board remand directive, those records were requested, obtained and associated with the claims file by the AMC in October 2012. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). To that extent, the Board's September 2012 remand directive has been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). As evidenced by the claims file, the Veteran has received extensive private treatment for his neck and low back disabilities since his separation from service. In the September 2012 remand, the Board directed that the Veteran should be requested to identify any outstanding private treatment records pertinent to his claims on appeal. After the Veteran submitted completed releases for various private medical professionals, updated private treatment records were received and associated with the claims file by the AMC from February 2013 to May 2013. The claims file contains private treatment records from Drs. Avila, Simmons, Avant, Mitchell, Ricketson, and Wiesenthal, as well as several chiropractors. In November 2012, the Veteran also submitted completed releases for Dr. Valdez and Preventative Medicine and Rehabilitation Centers in San Antonio, Texas. In accordance with 38 U.S.C.A. § 5103A(2)(B) (2012) and Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012), the records from this private clinician and facility were requested by the AMC in December 2012 and February 2013; however, no response was received. In February 2013, the AMC's request for records from Preventative Medicine and Rehabilitation Centers in San Antonio, Texas, was returned to the AMC, marked as "Not Deliverable as Addressed, Unable to Forward" by the post office. Later that month, the AMC notified the Veteran that the record request had been returned and requested him to provide another address so further attempts could be made. The Veteran did not respond to this request, and in April 2013, he submitted a statement through his representative that he had no other evidence to submit. To the extent that the Veteran did not respond to the AMC's February 2013 request for another address for this private medical facility, the Court has held that, while VA has a significant duty to assist the Veteran in developing the facts and evidence pertinent to a Veteran's claim, it is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (a veteran cannot passively wait for help from VA). VA's duty must be understood as a duty to assist the veteran in developing her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In light of above, the Board concludes that the RO and AMC have substantially complied with the Board's September 2012 remand directive concerning obtaining identified private treatment records. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47. The Veteran was provided an August 2004 examination through QTC services in connection with his claims; however, the question of causation of the Veteran's neck and low back disabilities was not addressed in the QTC examination report or the subsequent addendum. The Veteran was provided a VA examination in connection with his claims in December 2005, and, as a result of the Board's April 2010 and September 2012 remands, addendum opinions were obtained in August 2010 and October 2012. As will be further discussed below, the December 2005 VA examination report and August 2010 addendum opinion are inadequate for the purpose of adjudicating the Veteran's claims. However, the October 2012 addendum opinions reflect that the VA clinician reviewed the Veteran's claims file and provided diagnoses and medical opinions which are congruent with the evidence in the claims file. All opinions offered in the October 2012 addendum are accompanied by a complete rationale. For these reasons, the Board concludes that the October 2012 VA addendum opinion is adequate for the purpose of adjudicating the Veteran's claims, and thus, VA has fulfilled its duty to assist the Veteran, and the Board's prior remand directives with respect to obtaining an adequate opinion have been substantially completed. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claims of service connection. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The representative and the VLJ asked questions to ascertain the extent of any in-service injury and to determine whether the Veteran's current disabilities are related to his military service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection - Neck Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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. 38 C.F.R. § 3.159(a)(2). Service connection for certain diseases, including arthritis, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a), even if such is noted to be "chronic." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Analysis The Veteran has been diagnosed with several neck disabilities, to include degenerative and postoperative changes of the cervical spine, degenerative disk disease cervical spine, status post anterior cervical decompression and fusion, with acute herniated nucleus pulposus C4-C6 and residual cervical radiculopathy. See e.g., the December 2005 VA examination report and an August 2010 X-ray report. As such, the first element (diagnosis) of a service connection claim has been demonstrated. Regarding the second element, evidence of an in-service disease or injury, the Veteran's service treatment records are replete with instances of, complaints of, and treatment for, neck pain. Specifically, a June 1979 physical therapy consultation report indicates the Veteran had sustained a blunt blow to the neck, and complained of stiffness of the neck with accompanying headaches. The provisional diagnosis was torticollis of the cervical region, and an X-ray of the cervical spine that month showed no evidence of fracture or misalignment. In May 1980 the Veteran reported having had a "crick in the neck" for the previous four days. There was limited range of motion. The assessment was of neck pain. A September 1982 clinical record reflects the Veteran's complaint of pain in the muscles of his neck and shoulders which he reported happened when he "twisted" while working on a car. There was no tingling, numbness, fasciculation or weakness present. The assessment was of muscle spasm. The July 1983 separation physical is absent mention of diagnosed pathology or symptomatology involving the neck region. In light of above, the second element (inservice event) of service connection has been demonstrated. The questions regarding this issue focus on the third element of a service connection claim, whether the Veteran's neck disability is related to an inservice event, injury, or disease. The Board notes that there are several nexus opinions of record which the Board will address in turn. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated in pertinent part: "The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has reviewed the conflicting evidence of record and notes certain strengths and weaknesses with each of the opinions. See Evans v. West, 12 Vet. App. 22, 30 (1998) (the Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim). As noted above, the clinician who provided the August 2004 QTC examination and addendum did not address the possible etiological relationship between the Veteran's current neck disabilities and his in-service neck injuries. The December 2005 VA examination report reflects that, after a review of the claims file and an interview with and physical examination of the Veteran, the examiner opined that "There is no causal relationship between [the Veteran's] post [-] service neck injury and [his] episode of care for the in [-] service neck [injury]." In providing rationale for this opinion, the examiner noted that the Veteran's in-service treatment for neck pain was relatively limited, and that no neck disability was reported at the time of separation. Further, the examiner noted that the first instance of post-service treatment for a neck disability was four years after the Veteran's separation from service, and that such treatment was in connection with a July 1987 work-related neck injury. See the December 2005 VA examination report. In the April 2010 remand, the Board concluded that this opinion was inadequate for the purpose of adjudicating the Veteran's claim because the examiner had not considered the complete record, specifically, records of private chiropractic care dated from 1985 to 1987, when providing the opinion. As a result of the Board's April 2010 remand, an addendum opinion was sought. The August 2010 addendum reflects that, after a review of the claims file, the examiner opined that the Veteran's current neck disabilities were less likely as not the result of his service, to include his in-service treatment for neck pain. In providing this opinion, the examiner noted that the medical evidence was silent for sequelae of the in-service neck injury during the final year of service, to include the separation examination, and he did not receive any medical treatment pertaining to his neck until a 1992 work-related injury. The clinician indicated that the Veteran's current neck disabilities were likely due to his "fairly strenuous" post-service job as a warehouseman. See the August 2010 addendum opinion. In the September 2012 remand, the Board concluded that the August 2010 addendum opinion was inadequate for the purpose of adjudicating the Veteran's claim because, as averred by the Veteran's representative in a July 2012 Brief, the opinion did not address the Veteran's contention that he received private chiropractic treatment for his neck disability from 1985 to 1987. As such, the Board determined that the August 2010 addendum opinion was inadequate, and thus, a remand was necessary under Stegall because the Board's prior remand directive in that regard had not been substantially completed. As a result of the September 2012 Board remand, the Veteran's claims file was transferred back to the VA clinician who provided the August 2010 opinion, and he was instructed to provide another opinion concerning the etiology of the Veteran's neck disability which included consideration of the Veteran's private chiropractic treatment from 1985 to 1987. After another review of the complete claims file, the clinician noted that the private chiropractic records dated from 1985 to 1987 were devoid of any indication concerning whether the Veteran's medical treatment pertained to his neck, his low back, both, or neither. However, the examiner opined that, even if the Veteran received chiropractic treatment for his neck as early as 1985, there remained a 3-year time gap between the last in-service record reflecting neck pain in 1982 and the 1985 chiropractic treatment. Further, the clinician noted that, in a July 1994 document in connection with the Veteran's 1992 claim for worker's compensation, he reported that the onset of his neck disability was in 1987, due to a work-related injury. In light of above, the clinician opined that the Veteran's current neck disabilities, to include prior surgery, were less likely as not the result of his service, to include his in-service complaints of neck pain, but more likely than not due to his 1987 work-related injury, an intervening cause. See the October 2012 VA opinion. In support of his claim, the Veteran submitted a VA-issued Disability Benefits Questionnaire (DBQ) which was completed by Dr. Simmons in May 2013. In this document, Dr. Simmons marked a box corresponding to the statement "The claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." In the DBQ's section for rationale, Dr. Simmons wrote "Based on the historical information provide[d], the clinical examination, and objective findings from diagnostic tests [and] imaging." Curiously, Dr. Simmons also marked a box indicating that a baseline level of severity could not be established for aggravation of a nonservice-connected disability by a service-connected disability. Also, Dr. Simmons indicated that the Veteran's claims file and VA treatment records were not available for review, adding "The necessary VA records were not made available; therefore, the decision is on a historical basis." See the May 2013 DBQ completed by Dr. Simmons. Also in favor of the Veteran's claim are his own statements that his current neck disabilities are the result of his service. See e.g., a May 2013 statement from the Veteran and the February 2010 hearing transcript at p. 4. In consideration of all of the nexus evidence recounted above, the Board concludes that the most probative competent evidence fails to demonstrate that it is at least as likely as not that the Veteran's current neck disabilities are proximately due to or the result of any incident of the Veteran's service. Concerning the Veteran's lay assertions that his current neck disabilities are the result of his service, the Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); 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). Here, the Veteran has consistently asserted that his current neck disabilities are the result of his service. However, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, the Veteran's various neck disabilities are not conditions that can be causally-related to military service without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Thus, the Board concludes that, although the Veteran is competent to report symptoms, his statements as to the origin of his current neck disabilities do not constitute competent evidence. As a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding such matters. Concerning the remainder of the nexus evidence of record, for the following reasons, the Board concludes that the October 2012 VA opinion against service connection is more probative than the May 2013 opinion from Dr. Simmons. Initially, the Board notes that Dr. Simmons does not specifically state that this opinion pertains to the Veteran's neck disabilities claim. However, even assuming that this opinion was offered in support of this claim, the probative value of such is negatively affected by several factors. First, unlike the clinician who provided the October 2012 VA opinion, Dr. Simmons stated that he did not review the complete record prior to offering the May 2013 opinion. Hernandez-Toyens, Vet. App. 78, 81 (1990); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the claims file was not reviewed in connection with this opinion, it appears that Dr. Simmons' May 2013 opinion was based largely on the Veteran's own assertions, and the Court has held that such opinions are no more probative than the Veteran's self-reported history. Leshore v. Brown, 8 Vet. App. 406, 409 (1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Second, in contrast with the October 2012 VA opinion, Dr. Simmons offered no rationale for the May 2013 opinion, negatively affecting its probative weight. Bloom v. West, 12 Vet. App. 185, 187 (1999) (The 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"); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). In light of above, the Board concludes that the most probative evidence of record concerning the etiology of the Veteran's current neck disabilities is unfavorable to his claim. The weight of the probative medical evidence is against a finding that a current neck disorder is related to service, and thus, element (3) has not been demonstrated. As noted above, the Board acknowledges that service connection may be established on the basis of chronicity and/or continuity of symptomatology under 38 C.F.R. § 3.303(a) and (b). In this respect, the Board notes that the Veteran has been diagnosed with degenerative joint disease (arthritis) of the neck, and this disease is among the conditions recognized as chronic under 38 C.F.R. § 3.309(a), even if such is noted to be "chronic." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). First, although the record reflects an in-service neck injury as well as in-service complaints of and treatment for neck pain, there is no objective medical evidence showing that the Veteran had a chronic neck disorder during service. The Board finds it pertinent that there were no abnormal x-ray findings during service and that the Veteran's neck was evaluated as normal at separation. The first medical of evidence of arthritis, a chronic disease as defined by 38 C.F.R. § 3.309, comes from X-ray reports performed in connection with the August 2010 VA opinion - more than 25 years after the Veteran's separation from service. The evidentiary gap between the Veteran's active service and the earliest medical evidence of a chronic neck disability weighs heavily against the Veteran's claim. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Further, although service connection for certain diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service, as recounted above, there is no evidence showing that the Veteran had been diagnosed with arthritis of the cervical spine (neck) during the initial post-service year. Accordingly, service connection cannot be awarded under the provisions of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim to establish service connection for a neck disability. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a neck disability is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). Aggravation of a Preexisting Condition - Back Disability A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the "pre-existing condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to direct-incurrence service connection benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one of direct incurrence service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. Conversely, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for direct-incurrence service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. See Wagner, 370 F. 3d at 1094-1096. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2006); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Congenital or developmental defects such as congenital spondylolisthesis (spina bifida occulta) are not "diseases or injuries" within the meaning of applicable statutes and regulations. However, where, during service, a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted. 38 C.F.R. §§ 3.303(c), 4.9; Sabonis v. Brown, 6 Vet. App. 426 (1994); Monroe v. Brown, 4 Vet. App. 513, 514-515 (1993);Carpenter v. Brown, 8 Vet. App. 240 (1995); VAOPGCPREC 67-90 (July 18, 1990), 55 Fed. Reg. 43253 (1990); VAOPGCPREC 82-90 (July 18, 1990), 56 Fed. Reg. 45711 (1990); VAOPGCPREC 11-99 (Sept. 2, 1999), 65 Fed. Reg. 6257 (2000). Analysis The Veteran is seeking entitlement to service connection for a low back condition. The record reflects several diagnosed low back disabilities, to include developmental variant lumbosacral junction, L5 spondylolysis, degenerative changes of the lumbosacral spine, acute lumbosacral herniated nucleus pulposus, lower extremity radiculopathy, status post posterior lumbar interbody fusion L5 through S1, with later re-exploration and revisions, decompression laminectomy and fusion L4 through S1. See e.g., the December 2005 VA examination report as well as the August 2010 and October 2012 VA opinions. Accordingly, the matter of the existence of a current low back disability, is not in dispute. As discussed above, generally, a veteran is considered to be in sound condition upon entry into service except for conditions that are noted on the Veteran's entrance examination. One exception to the presumption of soundness is where there is clear and unmistakable evidence that an injury or disease existed prior to service and was not aggravated during service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In this case, the presumption of soundness applies, subject to rebuttal by clear and unmistakable evidence, because the Veteran's entrance examination is devoid any notation concerning a disorder pertaining to the low back. In a January 2009 statement, Dr. Simmons stated that it was clear that, while L5-S1 spondylolisthesis, grade 1, was initially diagnosed during the Veteran's service (in March 1983), the condition "has been there since [as] early as adolescence." See a January 2009 statement from Dr. Simmons. This is the first evidence of record that the Veteran may have had a preexisting low back disability. On remand in April 2010 and September 2012, the Board sought medical opinions clarifying this matter. The clinician who offered the August 2010 VA opinion noted that this condition is a "congenital or developmental defect." See the August 2010 VA opinion. The same clinician clarified in the October 2012 VA opinion opined that the Veteran's spondylolisthesis, termed as spina bifida occulta, was a congenital variant or condition, but not a disability. See the October 2012 VA opinion. The Veteran, his sibling, and his cousin have submitted statements indicating that the Veteran did not have a low back disability or symptomatology of such prior to his entry into service. However, the Board finds that the statements of Dr. Simmons and the clinician who provided the August 2010 and October 2012 VA opinions to be more probative on this matter because, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, the matter of whether the Veteran had a developmental or congenital back condition is not an issue which can be observed without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372; see also Goss v. Brown, 9 Vet. App. 109 (1996); Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In light of above, the Board finds that there is clear and unmistakable evidence that the Veteran had a preexisting low back disability when he entered service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). The issue thus becomes whether the Veteran's pre-existing right foot disorder was clearly and unmistakably not aggravated beyond normal progression by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Accordingly, "a lasting worsening of the condition"--that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). The Veteran's service treatment records are replete with instances of complaints of and treatment for low back pain as well as a diagnosed low back condition. Specifically, in October 1976, the Veteran underwent evaluation for a complaint of lower back problems, with back pain over the preceding two weeks. The assessment was of mild muscle strain. A March 1983 emergency care record indicates the Veteran presented with dull lower back pain over one week. Pain was localized to the left sacroiliac joint and non-radiating. The diagnosis was low back strain. The Veteran was seen again three days later for continued low back pain. An x-ray revealed L5 spondylolysis with spondylolisthesis of L5 on S1. The assessment was of lower back pain secondary to L5-S1 spondylolysis with Grade 1 spondylolisthesis. The Veteran was placed on a physical profile due to back strain. On a July 1983 examination for purpose of separation the Veteran indicated that he had injured his back about two months ago, but he thought that he was "ok now." In light of above, it is clear that the Veteran sought treatment for low back pain due to various injuries during his service. However, the most probative competent evidence of records reflects that the Veteran's preexisting low back condition was clearly and unmistakably not permanently aggravated by any incident of his service. Neither the August 2004 QTC examiner nor the December 2005 VA examiner addressed the matter of aggravation of a preexisting low back condition. However, after a complete review of the claims file, the clinician who provided the August 2010 and October 2012 VA opinions opined that the Veteran's preexisting low back condition was not aggravated by his service, but rather, was aggravated by his 1992 work-related injury which lead to his subsequent low back surgeries and currently-diagnosed low back disabilities. See the August 2010 and October 2012 VA opinions. Likewise, in the January 2009 statement, Dr. Simmons stated that the July 1992, work-related injury had aggravated the spondylolisthesis, which had been present as "early as adolescence." See the January 2009 statement from Dr. Simmons. It appears that the Veteran may have submitted the May 2013 DBQ completed by Dr. Simmons in support of his claim. As noted above, in completing the form, Dr. Simmons did not specifically state that this opinion pertains to the Veteran's low back disabilities claim. However, even assuming that this opinion was offered in support of this claim, the Board notes that, while Dr. Simmons discusses the matter of aggravation of a nonservice-connected disability by a service-connected disability in the context of establishing a baseline level of severity, the medical issue of aggravation of a preexisting disability is not addressed. As such, this opinion is of no benefit to the Veteran in substantiating his claim. In light of above, there is no medical evidence contrary to the January 2009 statement from Dr. Simmons and the August 2010 and October 2012 VA opinions that the Veteran's preexisting low back condition was not permanently aggravated by any incident of service. Rather, the evidence of record reflects that this preexisting low back condition was aggravated by his July 1992 work-related injury. In light of the above, the Board finds most probative evidence of record reflects that Veteran's spondylolisthesis (spina bifida occulta) clearly and unmistakably preexisted his service and was clearly and unmistakably not aggravated by any incident of his service. Therefore, the presumption of soundness on entrance to service is rebutted. In light of above, the Board must consider whether the Veteran's preexisting low back disability was aggravated during service pursuant to 38 U.S.C.A. § 1153. 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2006); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). As noted above, there is no medical evidence of a permanent increase in severity of the preexisting low back disability until the Veteran's post-service work-related injury in July 1992. To the contrary, the opinions of Dr. Simmons in January 2009 as well as the clinician who provided the August 2010 and October 2012 VA opinions, support a finding that the Veteran's current low back disability is related the July 1992 work-related injury and not to service aggravation. The Board notes the Veteran's lay statements in support of his claim. Specifically, the Veteran asserts that he did not have a low back condition which preexisted his service, and that his current low back disability is the result of an in-service injury. Essentially, he is asserting his claim under the theory of direct service connection. However, because the presumption of soundness has been rebutted, the Veteran is not entitled to direct-incurrence service connection benefits. 38 U.S.C. §§ 1111, 1153. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a low back disability is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.306 (2012). ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a low back disability is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs