Citation Nr: 1608460 Decision Date: 03/02/16 Archive Date: 04/01/16 Citation Nr: 1608460 Decision Date: 03/02/16 Archive Date: 03/09/16 DOCKET NO. 11-09 861 ) DATE MAR 02 2016 ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for psychiatric disability claimed as depression, to include as secondary to service-connected residuals of a low back injury with degenerative arthritis. 2. Entitlement to service connection for degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to February 1983. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2013 rating decision in which the RO denied service connection for multilevel spondylitic disease of the cervical spine and for depression. A statement of the case (SOC) was issued in June 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2015. The Board notes that, while the Veteran previously was represented by private attorney, in October 2014, the Veteran granted a power-of-attorney in favor of the private attorney listed above (of the same firm) with regard to the claims on appeal. The Veteran's current attorney has submitted correspondence on his behalf. The Board recognizes the change in representation. In February 2014, the Board remanded claims for a rating in excess of 20 percent for service-connected residuals of low back injury with degenerative arthritis and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. As the agency of original jurisdiction has not yet completed the directed actions on these claims, they may be the subject of a future Board decision. On December 18, 2015, the Board issued a decision denying service connection for psychiatric disability claimed as depression, and for degenerative disc disease of the cervical spine. ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). As noted in the Introduction, above, on December 18, 2015, the Board issued a decision denying service connection for psychiatric disability claimed as depression, and for degenerative disc disease of the cervical spine. However, it was subsequently discovered that, on December 17, 2015, one day prior to mailing of the decision, the Board received by facsimile a letter from the Veteran's attorney referring to a September 2015 request by his office for a copy of the report of a June 10, 2013 VA examination of his client, and advising that he had not received the requested examination report. This document was not uploaded to the Veteran's electronic file until after dispatch of the Board's decision. Thereafter, on December 28, 2015, the Board received, by mail, a December 4, 2015 motion by the Veteran's attorney requesting an extension of time until "March 3, 2015" [sic] to submit additional evidence; the motion was post-marked on December 17, 2015. Records of an attempted facsimile transmission of that motion, on December 4, 2015, reflect that item was "not delivered". On January 4, 2016, the Board received, via facsimile, a motion by the Veteran's attorney for reconsideration of the December 18, 2015 Board decision, citing the outstanding request for a copy of a "June 10, 2015" [sic] VA examination report and his motion for extension of time to submit evidence. The Board finds that the record raises some questions as to whether the Board ever received the September 2015 Freedom of Information Act (FOIA) request referenced in the attorney's December 17, 2015 correspondence, and as to the actual date for, and existence of, the evidence requested. However, those questions notwithstanding, facts remain that, at the time of December 18, 2015 Board decision, information pertaining to an outstanding FOIA request had been received by the Board, but not addressed; and that the Veteran's attorney had requested an extension of time to submit additional evidence. Accordingly, due to the apparent denial of due process to the Veteran, the December 18, 2015 Board decision denying claims for service connection for psychiatric disability claimed as depression, and for degenerative disc disease of the cervical spine, is vacated. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 1552958 Decision Date: 12/18/15 Archive Date: 12/23/15 DOCKET NO. 11-09 861 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for psychiatric disability claimed as depression, to include as secondary to service-connected residuals of a low back injury with degenerative arthritis. 2. Entitlement to service connection for degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to February 1983. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2013 rating decision in which the RO denied service connection for multilevel spondylitic disease of the cervical spine and for depression. A statement of the case (SOC) was issued in June 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2015. The Board notes that, while the Veteran previously was represented by private attorney, in October 2014, the Veteran granted a power-of-attorney in favor of the private attorney listed above (of the same firm) with regard to the claims on appeal. The Veteran's current attorney has submitted correspondence on his behalf. The Board recognizes the change in representation. In February 2014, the Board remanded claims for a rating in excess of 20 percent for service-connected residuals of low back injury with degenerative arthritis and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. As the agency of original jurisdiction has not yet completed the remand directives on these claims, they may be the subject of a future Board decision. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. While the Veteran has complained of nervousness, frustration, and "feeling blue," he does have, and at no point pertinent to the appeal has had, a diagnosed psychiatric disability, to include depression. 3. Although service record document that the Veteran sustained injury in a forklift accident in 1981, degenerative disc disease of the cervical spine first manifested many years after the Veteran's discharge from service; there is no competent, credible evidence of a continuity of neck symptoms since service; and the only competent, probative opinion to address the relationship, if any, between the current disability and the Veteran's military service, weighs against the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for psychiatric disability claimed as depression are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.384, 4.125(a) (2015). 2. The criteria for service connection for degenerative disc disease of the cervical spine are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131], 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, in September 2011 and March 2013 letters, sent prior to the initial unfavorable decision issued in June 2013, the RO advised the Veteran of the evidence and information necessary to substantiate his service connection claims on a direct and, where appropriate, secondary basis as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman. Relevant to the duty to assist, the Veteran's service treatment records, identified private, Social Security Administration (SSA), and VA medical records dated through May 2010 are of record. VA electronic records were searched through July 2015 with no additional records found, consistent with the Veteran's statements to VA examiners that he sought private medical treatment. The Veteran was provided VA examinations in March and May 2013 with an additional medical opinion based on a record review in August 2012. The examinations/opinions are adequate, as they involved a review of the claims file, consideration of the Veteran's lay statements, and a clinical examination that addressed current disorders and events in service. Moreover, the Veteran has not identified any other sources of relevant evidence. Also of record and considered in connection with the claim are statements of the Veteran, his family members, and his representative. The Board finds that no further action on this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain relevant evidence, and the Veteran's and VA's respective responsibilities obtaining relevant evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of either matter herein decided, at this juncture. See Mayfield, v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran served as a U.S. Army heavy construction equipment operator. He contended in a February 2011 claim the he felt depressed because of his service-connected low back disability. In correspondence dated in October 2011, the Veteran's representative repeated this contention and contended that the Veteran's cervical spine was injured in the same accident in service which caused his low back disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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). The requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Service connection for certain identified chronic diseases, to include arthritis and psychoses, may be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree (10 percent for arthritis) within a prescribed period following separation from service (1 year for arthritis). 38 U.S.C.A. §§1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Psychoses include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder and substance-induced psychotic disorder but not depressive or substance abuse disorders. 38 C.F.R. § 3.384. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The regulation requires the establishment of a baseline level of disability prior to aggravation and a showing that the secondary condition was not due to the natural progression of a disease. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Depression When, as here, a case is certified to the Board on or after August 4, 2014, a diagnosis of an acquired psychiatric disorder must be in accordance with the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 4.125(a). See 79 Fed. Reg. 45 ,093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference DSM-5). Service treatment records show that the Veteran sustained an injury on a beach field exercise in May 1981. He was in a face-down prone position in sand when a rough terrain forklift truck rolled over his lower torso causing non-displaced fractures of the left and right acetabulum and a chip fracture of the inferior ramus of the pubis on the right side. After a period of limitation of duty and use of crutches, the Veteran returned to his regular duties. Service treatment records are silent for any mental health complaints, findings, or diagnoses, to include depression. On January 1983 discharge physical examination, the Veteran reported no medical problems or profiles except for occasional back pain in the morning, and denied symptoms of depression, excessive worry, and nervous trouble. The military examiner noted no psychiatric abnormalities. A Certificate of Release or Discharge from Active Duty (DD Form 214) shows that the Veteran received an early general discharge under honorable conditions because of alcohol abuse rehabilitation failure. In November 2001, after review of VA records of outpatient treatment for chronic episodes of low back pain and imaging studies of the lumbar spine that confirmed remote trauma, the RO granted service connection for residuals of a low back forklift truck injury with degenerative arthritis, effective September 16, 1999, the date of receipt of the Veteran's claim for service connection. The Veteran subsequently underwent lumbar spine surgery in 2006 and 2009. The Veteran reported to VA and SSA adjudicators that he had worked after service for 25 years as a roofer and carpenter until November 2006 when he ceased all work because of low back pain and limitations in lifting, standing, walking, and carrying materials up ladders to a roof. In October 2010, SSA also granted disability benefits for degenerative disc disease of the lumbar spine. None of the records contain reports by the Veteran of any symptoms of depression or other mental health disorders. Private, VA, and SSA records dated through the end of 2010, including the report of a December 2007 VA spinal examination, are silent for any mental health symptoms. In VA primary care screenings in September 2008 and June 2009, the Veteran specifically denied any feelings of depression or hopelessness. The RO received the Veteran's claim for service connection for depression in February 2011. The Veteran reported that he felt depressed because of his service-connected low back disability. In records dated from June through September 2011, a private pain clinic physician noted the Veteran's reports of moderate to severe chronic low back pain with associated symptoms of interrupted sleep, nervousness, frustration over restriction of activity, and "feeling blue all the time." However, the Veteran inconsistently denied anxiety, depression, and mood swings. The physician also noted that the Veteran consumed two to three alcohol drinks every day. In August 2012, a VA psychologist noted a review of the claims file but did not examine the Veteran. The psychologist noted the Veteran's self-report of feelings of depression but that there was no record of a competent diagnosis or treatment for depression. The psychologist also noted that Veteran had denied any such symptoms in primary care screenings in September 2008 and June 2009. The psychologist found that there was no evidence of record to support the contention that the Veteran's self-reported and undiagnosed symptoms of depression were directly or proximately related to the low back injury and degenerative arthritis. In May 2013, another VA psychologist noted review of the claims file, accurately summarized the history of military service including low back injury and alcohol rehabilitation program failure, and post-service work experience. The psychologist noted the Veteran's report of seven charges of driving under the influence, the most recent in 2004 or 2005. The psychologist also noted a review of the August 2012 opinion, administered several psychometric tests, and performed a mental health examination. Although the tests revealed moderate depression, the psychologist noted that the results indicated over-reporting of psychiatric symptoms given the clinical presentation and medical record history. The psychologist found that the Veteran's description of his symptoms of sleeplessness, restlessness, and always thinking were not sufficient to support any diagnosis for depression. He had not been diagnosed in the past nor was he under any treatment for depression. The psychologist concurred in the August 2012 opinion and noted that the most consistent finding in the record was alcohol and polysubstance dependence, reportedly in remission in the past few years, and that this disorder was not caused or aggravated by military service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for depression is not warranted because the Veteran does not have, and at no point pertinent to this appeal has had, a diagnosed psychiatric disability, to include a chronic depressive disorder. Although the Veteran has reported "feeling blue" with interrupted sleep because of pain and restrictions in his level of activity, the competent mental health examiners in 2012 and 2013 found that these reported symptoms were over-reported and did not support a diagnosis of a chronic mental health disability. Both examiners noted that the Veteran had never sought or received mental health treatment. Notably, the two VA assessments are the only competent opinions of record to directly address the question the question of whether the Veteran has, or at any point pertinent to this appeal has had, a diagnosed psychiatric disability, and neither the Veteran nor his representative have presented on identified existing medical evidence or opinion that supports a current psychiatric diagnosis. The Board accepts the VA etiology opinions of record as probative of the current disability question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). While the Board notes the 2013 VA psychologist's diagnosis of alcohol and polysubstance abuse, such diagnosis was based on the reason for the military discharge and the Veteran's reported history of alcohol consumption, drug abuse, and legal infractions. This period of time included several decades of productive employment without treatment or counseling prior to the reported increase in severity of the lumbar spine disease leading to his termination of employment, limitation of activities, and self-reported depressive symptoms. Significantly, moreover, substance abuse has been in remission for the entire period under consideration in this appeal. In sum, no current psychiatric disability is medically shown. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131 ; see also 38 C.F.R. § 3.310 . Thus, where, as here, competent, probative evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection-on any basis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition to the medical opinions and other evidence discussed, the Board has considered the Veteran's own and other lay assertions advanced in support of his claim. However, such assertions do not provide persuasive support for the claim. The Veteran is certainly competent to report his symptoms, and, likewise, his family members and representative are each competent to report their observations of the Veteran's symptoms. See, e.g., Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). However, as laypersons not shown to have appropriate medical training and expertise, none is competent to render a probative opinion on a complex medical matter, such as whether the Veteran has a current psychiatric disability underlying his complaints, , as resolution of such question involves an internal processes extending beyond an immediately observable cause-and-effect relationship. As the question of current disability in this case may not be competently addressed by lay evidence, the lay statements of record do not constitute competent, probative evidence on this point. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). For all the foregoing reasons, the Board finds that the claim for service connection for psychiatric disability claimed as depression must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Degenerative Disc Disease of the Cervical Spine As noted above, service treatment records show that the Veteran sustained an injury on a beach field exercise in May 1981 when a forklift truck rolled over his lower torso causing non-displaced fractures of the pelvis. There is no mention of any upper body, head, or neck injuries. After a period of limitation of duty and use of crutches, the Veteran returned to his regular duties. Service treatment records are silent for any symptoms, diagnoses, or treatment for any neck or cervical spine disorders. In a January 1983 discharge physical examination, the Veteran reported no medical problems or profiles except for occasional back pain in the morning. He denied any head injury, and the military examiner noted no head or neck abnormalities. As noted above, the Veteran reported working as a roofer and carpenter for 25 years. In June 2001, the Veteran sought VA treatment for low back pain that he had experienced since the forklift truck accident. A clinician noted that the Veteran denied any headaches or neck stiffness and made no mention of any neck injury incurred during the accident. In July 2007, the Veteran was referred to a VA neurology clinic for investigation of acute right hand numbness. He denied any neck pain or radicular features. Electrodiagnostic studies revealed right ulnar nerve neuropathy and possible focal neuropathy at the wrist but no right-sided cervical radiculopathy. However, imaging studies of the cervical spine showed loss of normal cervical lordosis, degenerative changes with marginal osteophyte formation and sclerosis with narrowing of disc spaces. There was no indication of fractures or dislocations. The Veteran received pain medication, but physical therapy was limited to treatment of the lower back. Records of examination and adjudication by SSA are silent for any neck symptoms or related activity limitations. In a VA orthopedic consultation in May 2010, the Veteran reported episodes when "his neck goes out" three times per year. The consulting physician noted the imaging studies that revealed degenerative disc disease but also found that the right extremity numbness was caused by ulnar neuropathy and not radicular arm pain. The RO received correspondence from the Veteran's representative referring to a July 2011 claim for service connection cervical spine impairment in which the representative argued that the impairment was caused by injury in the same forklift accident which caused the lower back injury. On September 2011 VA peripheral nerve examination, the examiner noted no pain, limitation of motion, loss of strength, sensation, or reflexes in the upper extremities. In March 2013, a VA examiner noted a review of the claims file and the Veteran's description of the forklift accident in which one vehicle wheel rolled over him from the right posterior shoulder to the left thigh. He reported current symptoms of daily neck stiffness with flare-ups once per month lasting several days. He reported that he was able to drive an automobile with good use of mirrors. The examiner referred to the imaging studies in 2007 and 2009 that revealed degenerative disease at several cervical spine levels. On examination, the examiner noted limitation of motion with pain on motion. However, there were no clinical indications of radiculopathy or other neurological abnormalities. Concurrent X-rays continued to show moderate degenerative changes, disc space narrowing, and marginal osteophyte formation but no acute fracture or subluxation. The examiner found no evidence to support the representative's argument that the Veteran injured his neck in the forklift accident as the Veteran made no such reports at the time and clinicians did not observe or treat a neck injury. His description of the nature of the accident did not involve the upper spine. The examiner noted that the first imaging of the cervical spine in 2007 was to investigate arm and hand numbness and ruled out radiculopathy. The Veteran reported the onset of neck pain only after this study. The examiner noted that the Veteran now had degenerative disease of the cervical spine, but that it was not caused by the forklift accident. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for degenerative disc disease of the cervical spine is not warranted. Although the Veteran has a current cervical spine disability, the disorder first manifested greater many years after active service and is not medically shown to be related to any in-service injury or disease, to include an injury to the lower trunk in a forklift accident in 1981. Notably, service treatment records are silent for any injury to the cervical spine or any abnormalities of the upper spine or neck musculature in service. Moreover, as no spine complaints or problems are documented in the record until many years after service, there is no credible evidence of continuity of symptoms. Contrary to the representative's argument, , the Veteran did not describe a neck injury or report any neck symptoms until after the 2007 imaging studies identified degenerative disease of the cervical spine. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, on the question of etiology of current cervical spine disability, the Board accords great probative weight to the assessment of the 2013 examiner who reviewed the entire record, considered the Veteran's lay statements, and found that the cervical spine disease manifested many years after service and was not caused by the forklift accident. Significantly, neither the Veteran nor his representative has presented on identified any medical evidence or opinion providing such a nexus. As above, in additional to the medical evidence of record, the Board has considered the Veteran's own assertions, as well as arguments by his representative advanced on his behalf-to include any attempt to directly establish a nexus between current psychiatric disability and a service-connected disability. However, as noted above, as laypersons not shown to have appropriate medical training and expertise, neither is competent to render a probative opinion on a complex medical matter such as the etiology of the Veteran's cervical spine degenerative disc disease. Moreover, in clinical settings, the Veteran did not report a neck injury in service and did not report a continuity of symptoms after service prior to 2007. As the question of etiology in this case may not be competently addressed by lay evidence, the Veteran's and his representative's statements do not constitute competent, probative evidence on this point. For all the foregoing reasons, the Board finds that the claim for service connection for degenerative disc disease of the cervical spine must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for psychiatric disability claimed as depression, to include as secondary to service-connected residuals of a low back injury with degenerative arthritis, is denied. Service connection for degenerative disc disease of the cervical spine is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs