Citation Nr: 18139817 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-08 466 DATE: October 1, 2018 ORDER Service connection for a neck condition, diagnosed as uncovertebral arthrosis, spondylosis, and atlantodental degenerative joint disease (DJD), is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with neck disorders of uncovertebral arthrosis, spondylosis, and atlantodental DJD. 2. The Veteran did not sustain a neck injury, disease, or event during service. 3. Symptoms of a neck disorder, including arthritis, were not chronic in service. 4. Symptoms of a neck disorder, including arthritis, were not continuous since service. 5. Arthritis did not manifest to a compensable degree within one year of service. 6. The currently diagnosed neck disabilities did not have onset during service and are not otherwise related to active duty service. CONCLUSION OF LAW The criteria for service connection for a neck disorder, diagnosed as uncovertebral arthrosis, spondylosis, and atlantodental DJD, have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1990 to December 1994. This matter is on appeal from a May 2014 rating decision from the RO in St. Louis, Missouri. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(c), 3.159, 3.326. Neither the Veteran nor the representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Based on the foregoing, the Board finds that all relevant documentation, including VA and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326(a). The duties to notify and assist have been met. Service Connection for a Neck Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has a current disability of arthritis in the neck, more specifically diagnosed as uncovertebral arthrosis, spondylosis, and atlantodental DJD. See September 2012 private treatment record and 2013 VA treatment records. Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309(a) so the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, where a veteran served ninety days or more of active service, and chronic diseases such as arthritis become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In the instant claim, the Veteran claims service connection by the RO for a neck disorder. The Veteran and the representative filed an appeal on the issue, but did not proffer any explanation about service connection for the neck disorder since filing the initial claim in October 2013. After a review of all the evidence, the Board finds that the Veteran is diagnosed with a current disability of the neck. A September 2012 private treatment record indicates that after an x-ray was taken, the diagnosis was postural changes, no evidence of an acute fracture, uncovertebral arthrosis, spondylosis, atlantodental DJD, and rotational malposition of C2. The weight of the lay and medical evidence shows that the Veteran did not sustain a neck injury, disease, or event during service, and that symptoms of a neck disorder, including arthritis, were not chronic in service. The Veteran has not proffered any explanation for service connection, including no contention that he injured the neck during service. Service treatment records, which are complete, show no in-service injury, findings, diagnosis, or treatment for a neck disorder or symptoms pertaining to the neck or cervical spine. The claims file includes several in-service and post-service records that report complaints and treatment for other disorders, including the service-connected right knee and lower back disabilities, but does not contain any indication that the Veteran reported a neck injury, complaints or symptoms of a neck disorder, or treatment for a neck disorder. A May 2005 private treatment record indicates that the Veteran had no neck pain or stiffness. Because the service treatment records are complete, and the Veteran was treated for similar orthopedic type disorders during service, similarly, had a neck or cervical spine injury or symptoms occurred during service, the Veteran knew how to seek treatment for such injury or symptoms, and likely would have done so. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported). The weight of the lay and medical evidence shows that symptoms of the neck disorder were not continuous since service separation, and arthritis of the cervical spine did not manifest to a compensable degree within one year of separation from service in December 1994. A September 2012 private treatment record shows that a neck disorder and relevant symptoms were first reported and diagnosed in September 2012, almost eight years after discharge from service. For these reasons, none of the presumptive service connection criteria are met. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). (Continued on the next page)   For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a neck disorder on a direct, presumptive, or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel