Citation Nr: 1343285 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 08-13 131A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a cervical spine disability, including degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Chance, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to February 1968 and from July 1968 to April 1969. Service in the Republic of Vietnam and award of the Combat Action Ribbon is evidenced in the record. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Atlanta, Georgia, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The issues were previously remanded in March 2012 for VA examinations and medical etiology opinions. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file has been completed. FINDINGS OF FACT 1. A back disability was not shown in service or within the first post-service year and is not related to a disease or injury of service origin. 2. A cervical spine disability was not shown in service or within the first post-service year and is not related to a disease or injury of service origin. CONCLUSIONS OF LAW 1. A back disability was not incurred in service. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304 (2013). 2. A cervical spine disability was not incurred in service. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.159 and 3.326(a). Under VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide. See also 38 C.F.R. § 3.159(b)(1). A VCAA letter dated in February 2006 satisfied most of the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was advised of the information and evidence necessary to substantiate a claim for service connection and the allocation of responsibilities between himself and VA. See Pelegrini II, at 120-121. A March 2006 letter explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). Therefore, the Board finds that the duty to notify has been satisfied. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran has at no time referenced outstanding private medical or treatment records that he wanted VA to obtain or that he felt were relevant to the claim. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). VA thoracolumbar and cervical spine examinations were conducted in March 2012 under the directive of a March 2012 Board remand; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As will be discussed in greater detail below, the examiner's diagnoses and opinions were based on review of the claims file and available medical records, the Veteran's reported history, and the results of his physical and x-ray examinations. The examination reports are thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for a back and cervical spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). There is no indication in the record that any additional evidence, relevant to the Veteran's back and cervical spine disability service connection claims is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. Accordingly, the Board will address the merits of the claim. Law and Regulations- Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases, including arthritis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes 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 is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Factual Analysis- Back Disability The Veteran contends that he has suffered from symptoms of a back injury since his military service. Specifically, he alleges that he sustained theses injuries as a result of an automobile accident in 1965 on Yap Island. He further alleges that his current back disability is due to a fall he sustained in 1967 while in Vietnam, as well as the rigorous occupational duties he endured while on active duty. He states that he has continuously sought medical treatment and that these same symptoms have continued since his service and therefore he is entitled to service connection for his current back disability. In the instant case, the Veteran has a current diagnosis of degenerative lumbar (disc) disease of the L4-5-S-1. This diagnosis was rendered during the Veteran's March 2012 VA examination. Thus, a current disability is well established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Regarding a nexus to service, the Veteran offered numerous buddy statements, private physician opinions, and personal written statements. The Veteran's personal written statements, collaboratively, recount the details of the 1965 automobile accident (discussed above), allege that no x-rays or MRI's were taken after the accident because no doctor was on the island to do so, and explain that the deterioration of his back was not immediate. A written statement on an August 2003 VA Form 9 attributes the Veteran's back pain to the 1967 fall. The Veteran submitted multiple buddy statements in February 2008. One letter from C.M. says that he was at the scene of the accident, which was a very serious head on collision. He stated that the drivers of the vehicles involved had to have been bounced around pretty severely based upon the damage to the vehicles. Lastly, he noted that seatbelts were not used during those days. A letter from S.S., a fellow dump truck driver, explained that he was told to stay put until further notice. When on his way back, he passed the accident scene and noticed that the bed was ripped away from the chassis on the Veteran's dump truck. He stated that the accident happened on a blind bed in the road. Lastly, he stated that he believed the biggest contribution to the accident were the street tires on the Veteran's dump truck. A July 2003 statement from O.R. states that he was a fellow construction battalion member who operated heavy equipment for long hours. He stated that "we all had backaches, headaches, and neckaches from working long hours on equipment." Furthermore, the letters submitted by the Veteran from multiple insurance company claims agents opine that based upon their years of experience and review of the photographs of the 1965 collision, that it is reasonable to assume that the Veteran could have sustained the current back disability as a result of the accident. The Veteran submitted an October 2003 letter from a private physician, Dr. W.S., which stated that he treated the veteran for persistent back pain in the early 1970's. He states that he could not precisely predict how long the condition existed, however it is the type of disability that can be present for many years prior to becoming symptomatic. Lastly, he opines that the back pain could have as likely as not been caused or aggravated by service. Review of the Veteran's service treatment records reveals that the Veteran was treated in April 1965 for injuries resulting from a truck accident. The notes indicate that no internal injuries were suffered. They explain that the only external injuries were a right wrist abrasion and a contusion of the right knee. The record specifically includes the following phrase: "No other complaints by the patient other than knee and wrist." A September 1967 re-enlistment examination reported a normal spine. A July 1968 examination reported a normal spine. In the contemporaneous medical history, the Veteran denied ever having or having at that time recurrent back pain; arthritis or rheumatism; or bone, joint or other deformity. The Veteran's November 1969 separation examination reported a normal spine as well and contained a signed certification from the Veteran that he was informed and understood the provisions of BUMED instruction 6120.6. The Veteran underwent a VA thoracolumbar spine examination in March 2012 to determine the existence of any current back disability and the severity of such. The examiner opined that there is no possible basis of contention to connect the Veteran's lumbar spine disability to service and therefore that it is less likely than not that the current back disability is associated with service. He reasoned that the April 1965 truck accident did not cause any internal injuries and that it was specifically noted that the only external injuries were a wrist abrasion and a knee contusion. Further, the examiner found no records related to the April 1965 report of injury that confirmed any injuries to the back, to include the Veteran's subjective complaints. Lastly, he noted that the Veteran provided medical histories in 1967, 1968, and 1969 and marked "no" in relation to all musculoskeletal items and that examinations during these dates found no musculoskeletal abnormalities. In deciding this claim, the Board has duly considered the Veteran's lay contentions of back pain, he is competent to report these symptoms, as they are readily observable, and do not require medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not however competent to identify a medical etiological opinion regarding such disability because he lacks the required medical skill and knowledge. Such competent evidence concerning the nature and extent of the Veteran's current back disability has been provided by a VA medical professional who physically examined him and provided a reasoned supportive rationale for the negative medical opinion provided. The buddy statements simply corroborate that the accident indeed took place and offer a speculative cause for accident, they do not offer competent evidence that provides a link between the Veteran's current back disability and his military service. Additionally, the buddy statement from O.R. offers corroboration regarding the rigorous working conditions and long hours of the construction battalion members, however, he is not competent as a lay person to report that the Veteran had symptoms in service that resulted in current disability. The letters from the multiple insurance claims agents merely offer opinions as to whether the Veteran's current disability could in fact result from an accident of such magnitude based upon pictures of the collision and their years of expertise in their profession. However, there is no indication that the agents are medical professionals, therefore, their statements do not constitute competent evidence as to etiology. Additionally, the statement of Dr. W.S. is speculative in nature as the physician indicated that he treated the Veteran for back pain in the early 1970's that could have been caused or aggravated by service. Accordingly, the statement is assigned no probative weight. The next requirement of direct service connection is that the Veteran must have suffered an in-service injury or disease. The Veteran contends that he was hauling coral on Yap Island with a dump truck as part of a construction battalion in April 1965. He states that his dump truck was only equipped with street tires. On a return trip to pick up another load of coral, the truck began to slide due to the slick road conditions. As a result his dump truck collided with a gas tanker truck head on. The impact was hard and knocked the bed off his dump truck. He further contends that he went to sick bay at the coast guard station and saw a corpsman in lieu of a doctor shortly after the collision because there was no qualified physician to examine him on the island at that time. Therefore, there were no x-rays taken. Additionally, the Veteran has submitted photographs of the automobile accident and his service treatment records corroborate his contention that the accident indeed took place in April 1965, while the Veteran was on active duty. The service treatment records show that the accident happened in April 1965 and that the Veteran fell in 1967. The Board also concedes to the rigorous job duties consistent with a Navy construction battalion member. However, to the extent that the Veteran reports that he injured his back in the motor vehicle accident at Lorsta Yap, the service treatment record contemporaneous in time to the accident notes that there were no complaints from the Veteran other than those having to do with the knee and wrist. The Board finds the statements made by the Veteran shortly after the 1965 accident reporting only injuries to the knee and wrist to be credible and probative rather than current statements that he suffered a back injury at that time. In October 1967, the Veteran was seen in Vietnam approximately one month after a fall. The Veteran complained only of left elbow problems. The Veteran did not indicate that the fall occurred while engaged in combat. Instead, he testified that he slipped and fell off equipment and was treated in Vietnam. However, the October 1967 service treatment record notes complaints of the Veteran after the fall only with respect to his left elbow. Again, the Board finds the statements made by the Veteran shortly after the fall reporting only symptoms with respect to the left elbow to be credible and probative rather than current statements that he suffered a back injury at that time. Likewise, the Board finds that the notations and documentation in the Veteran's service treatment records regarding the 1967 fall, which no not indicate a back injury, to be the most accurate evidence of what injuries resulted at that time. As such, the Board finds the March 2012 VA examination report to be the most probative evidence of record, and thus, is accorded greater weight than any of the Veteran's subjective evidence. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). For the sake of completeness, it is noted that the Veteran's current back disability includes arthritis. Arthritis is considered to be a chronic disease for VA purposes (See 38 C.F.R. § 3.309(a)). However, arthritis was not shown within one year of the Veteran's discharge from service. Nevertheless, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element in claim involving a chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). In this case, a back condition was not noted during service and the Veteran affirmatively denied having recurrent back pain in 1968, although he currently reports that symptoms continued after the accident and fall. In addition, a back condition was not found at separation. Accordingly, continuity of symptomatology is not shown. For the reasons stated above, the Board concludes that the weight of the evidence is against a finding that there is a nexus between the current back disability and the Veteran's active military service. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013). Factual Analysis- Cervical Spine Disability The Veteran contends that he has suffered from symptoms of a cervical spine injury since his military service. Specifically, he alleges that he sustained these injuries as a result of an automobile accident in 1965 on Yap Island. Additionally, the Veteran alleges that he sustained an injury when he fell in 1967 while in Vietnam and alternatively associates his current disability with that incident. He further alleges that he sought medical treatment shortly after service and that these same symptoms have continued since his service and therefore he is entitled to service connection for his current cervical spine disability. The Veteran has a current diagnosis of degenerative joint disease of the cervical spine. This diagnosis was rendered during the Veteran's March 2012 VA cervical spine examination. Thus, the first element of service connection is satisfied. Next, the Veteran must have endured an in-service injury or event. Again, as discussed above, the evidence of record supports a finding that the Veteran was involved in an automobile accident in April 1965 while on active duty. Additionally, the evidence of record reveals that the Veteran sustained an injury when he fell in 1967 while in Vietnam and alternatively associates his current disability with that incident. While the Veteran reports that he injured his neck in the motor vehicle accident at Lorsta Yap, the service treatment record contemporaneous in time to the accident notes that there were no complaints from the Veteran other than those having to do with the knee and wrist. The Board finds the statements made by the Veteran shortly after the 1965 accident reporting only injuries to the knee and wrist to be credible and probative rather than current statements that he suffered a neck injury at that time. In October 1967, the Veteran was seen in Vietnam approximately one month after a fall. The Veteran complained only of left elbow problems. The Veteran did not indicate that the fall occurred while engaged in combat but rather testified that he slipped and fell off equipment and was treated in Vietnam. However, the October 1967 service treatment record notes complaints of the Veteran after the fall only with respect to his left elbow. Again, the Board finds the statements made by the Veteran shortly after the fall reporting only symptoms with respect to the left elbow to be credible and probative rather than current statements that he suffered a neck injury at that time. In support of his claim for service connection for a cervical spine disability, the Veteran offered numerous buddy statements, private physician opinions, and personal written statements. The Veteran's personal written statements, collaboratively, recount the details of the 1965 automobile accident (discussed above), allege that no x-rays or MRI's were taken after the accident because no doctor was on the island to do so, that the deterioration of his neck was not immediate, that he suffers from neck twitches, and that he sought treatment at the Atlanta VA hospital. He states that the injury should have been noted upon his military discharge in December 1969. He also contends within his statements that he received treatment from Dr. F. Finally, August 2003, the Veteran stated that he his cervical spine disability is due to operating heavy equipment while on active duty. Again, the majority of the buddy statements submitted by the Veteran (discussed in detail above) support the allegation that the accident happened in April 1965, however, they offer no corroboration of the Veteran's contention that he sustained a cervical spine injury as a result of such accident that resulted in his current disability. A July 2003 statement from O.R. states that he was a fellow construction battalion member who operated heavy equipment for long hours. He stated that "we all had backaches, headaches, and neckaches from working long hours on equipment." The letters from the multiple insurance company claims agents (discussed in detail above) offer only speculation as to whether the Veteran's current disability could have been sustained from the 1965 accident based upon the photographs of the collision and the experience of the agents. The Veteran has submitted private medical evidence in relation to his current cervical spine injury. An opinion submitted in April 2012 from Dr. F indicates that the Veteran has been a patient for many years, that he has reviewed the Veteran's service records, witness statements, collision photographs, and a 2002 MRI which showed degeneration, and that the Veteran suffered from pain in the neck and left shoulder, pain on flexion, extension and lateral bending, as well as the inability to completely extend. Dr. F opined that the pain is due to the event that occurred during service in 1965. He supports this opinion by stating that the Veteran was not examined by a doctor in 1965 after the accident and that no radiology studies were performed to reach complete diagnostic conclusions. A 2005 letter from Dr. F indicates that he reviewed the Veteran's military records which document a neck injury and diagnosis of a cervical spine strain during service as a result of the 1965 accident and that based upon his expertise, it is highly probably that the Veteran's current diagnosis is a direct result of his injuries suffered during active duty. A letter February 2003 letter from Dr. F states that the Veteran has a diagnosis of degenerative joint disease of the neck for 10 years (1993). He further states that he cannot precisely state how long the condition existed before the diagnosis was rendered, however, he opines that it could have as likely as not been caused or aggravated by the Veteran's military service. A letter dated in May 2005 from Dr. W. S. states that he reviewed the Veteran's service records and positively associates the Veteran's current neck pain to the 1967 fall the Veteran reported in service. Review of the Veteran's service treatment records reveal that the Veteran was treated in April 1965 for injuries resulting from a truck accident. The notes indicate that no internal injuries were suffered. They explain that the only external injuries were a right wrist abrasion and a contusion of the right knee. The record specifically includes the following phrase: "No other complaints by the patient other than knee and wrist". Records from March and April 1969, approximately 4 years after the 1965 accident, note complaints of left shoulder pain. The range of motion and muscle strength was recorded as "good" and the impression was a muscle strain. The veteran gave a history of physical exercise in an effort to lose weight. A September 1967 re-enlistment examination reported a normal spine. A July 1968 examination reported a normal spine. The Veteran's November 1969 separation examination reported a normal spine as well and contained a certification from the Veteran that he was informed and understood the provisions of BUMED instruction 6120.6. The Veteran offered testimony at a Board hearing in December 2004 before a Veterans Law Judge (VLJ). The Veteran testified that he sustained a neck injury in 1967 when he was working on heavy equipment in Vietnam and slipped and fell. The Veteran testified that he received treatment for his neck in the 1970's from Dr. S. The Veteran was afforded a VA cervical spine examination in March 2012 to determine the existence of any current cervical spine disability and the severity of such. The examiner reviewed the Veteran's claims file and post service records and noted that the Veteran reported having pain since the early 1970's. Arthritis was present and documented. The examiner diagnosed degenerative joint disease (DJD) of the cervical spine. He opined that the current disability does not impact the Veteran's ability to work and that it was not possible to connect the Veteran's neck disability to service. He supported his opinion by stating the following: "February 2012 MRI showed DJD of the C4, C5, C6, and C7 and that no stenosis was found. An x-ray in August 2010 showed mild DJD of the C4, C5, and C6. Another x-ray of the neck showed moderate, multi-level DJD. The 1965 report of injury did not confirm any spine injury to the neck. Subsequent exams indicate no problems with this area." The Veteran is competent to report symptoms of chronic neck pain, as it is readily observable through his senses, and does not require medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a medical etiological opinion regarding such disability because he lacks the required medical skill and knowledge. Such competent evidence concerning the nature and extent of the Veteran's current cervical spine disability has been provided by a VA medical professional who physically examined him and provided a supportive rationale for the negative medical opinion provided. Additionally, the buddy statement from O.R. offers corroboration regarding the rigorous working conditions and long hours of the construction battalion members, however, he is not competent as a lay person to link the Veteran's current disability to service. Lastly, the positive private medical opinions submitted by the Veteran conflict with the service treatment records. There are no service treatment records that indicate treatment for a cervical spine injury during service and the records specifically state the injuries sustained from the 1965 accident, which did not include cervical spine or neck injury. As for the positive opinions provided by Dr. F, the Board has thoroughly reviewed the records and finds that the Veteran's service treatment records do not contain a diagnosis of such and do not document a reported neck injury. Again, the Board finds that the statements made by the Veteran shortly after the 1965 accident, reporting the injuries sustained as a result of the accident to be credible and probative than the more recent statements attributing the current disability to such. Likewise, the Board finds that the notations and documentation in the Veteran's service treatment records regarding the 1967 fall, which no not indicate a cervical spine injury, to be probative and credible as to what injuries resulted at that time. Dr. F's February 2003 opinion that the disability could have as likely as not been caused or aggravated by service is not entitled to any probative weight as it is speculative in nature. As such, the Board finds the March 2012 VA examination report to be the most probative evidence of record, and thus, is accorded greater weight than any of the Veteran's subjective or private medical evidence. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). For the sake of completeness, it is noted that the Veteran's current back disability includes arthritis. Arthritis is considered to be a chronic disease for VA purposes (See 38 C.F.R. § 3.309(a)). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element in claim involving a chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Although the presence of current arthritis of the cervical spine has been shown by required x-ray evidence (See Diagnostic Code 5003), there is no documentation of back complaints or of a back disability, including arthritis, during service, within the first post-service year, or for many years thereafter. As such, service connection for cervical spine arthritis on a presumptive basis is not for application. Moreover, continuity of symptomatology is not shown as a cervical spine condition was not noted in service, the Veteran denied any such symptoms in a 1968 report of medical history and the separation examination found no abnormalities with respect to the cervical spine. The Board finds those records contemporaneous in time to service to outweigh the Veteran's current statements that he has had continuing symptoms since 1965. For the reasons stated above, the Board concludes that the weight of the evidence is against a finding that there is a nexus between the current cervical spine disability and the Veteran's active military service. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs