Citation Nr: 18141821 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-20 037 DATE: October 11, 2018 ORDER Entitlement to service connection for a cervical spine disability is denied. FINDING OF FACT Competent evidence has not been presented that a current cervical spine disability had its onset in service or has been chronic since service separation, manifested to a compensable degree within a year of service separation, or is related to an in-service disease or injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1980 to August 2004, including service in the Southwest Asia Theater of Operations. Entitlement to service connection for a cervical spine disability The Veteran seeks service connection for a cervical spine or neck disability. He asserts such a disability had its onset in service and has been chronic since that time. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease 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. 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); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases 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, 1112, 1113; 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. Id. In the present case, the Board finds, after consideration of the totality of the record, that the preponderance of the evidence is against the Veteran’s service connection claim for a cervical spine disability. Post-service treatment records contain a diagnosis of degenerative disc disease of the cervical spine, confirmed by a MRI study in 2013. As the Veteran has a confirmed diagnosis, the provisions of 38 C.F.R. § 3.317 do not apply. VAOPGCPREC 8-98. Thus, the question before the Board is whether such a disability had its onset during service, within a year thereafter, or has been chronic since that time. Considering first the Veteran’s service treatment records, these are negative for any diagnosis of or treatment for a cervical spine disability. Likewise, his April 2004 service separation examination and concurrent report of medical history were negative for any noted disabilities of the neck. On his report of medical history, the Veteran gave a history of back pain, but on that same report explained that his back pain was confined to his low back. On a July 2004 VA general medical examination, the Veteran reported recurrent low back pain since service, but did not report any pain of the neck or cervical spine. On physical examination, his neck was supple, with no limitation of motion or other impairment noted. In October 2004, the Veteran sought treatment at a military hospital for low back pain; he denied any symptoms of the neck at that time, however. On physical examination, the Veteran’s neck was normal. A February 2005 x-ray of the cervical spine was also within normal limits. The Veteran was afforded an April 2006 VA examination of the spine. While he reported chronic pain of the lumbosacral spine, no symptoms involving the neck or cervical spine were reported. The first diagnosis of the condition was a September 2008 CT scan which reflected mild degenerative changes. The Board notes that the Veteran has already been awarded service connection for degenerative disc disease with intervertebral disc syndrome of the lumbosacral spine. The Board notes that there are some records from 2011 which reflect the Veteran reported the onset of pain to be in 2002. While the Veteran reports continuous pain, as outlined above this assertion is contradicted by medical evidence of record, including several VA examinations which examined the neck and described it as normal and even a radiology study from February 2005 that found the bony structures were normal. For these reasons, the Board finds that the weight of the evidence is against a finding of continuity of symptomatology after service. 38 C.F.R. § 3.303 (b). Thus, based on the competent evidence of record, the Board must conclude the Veteran did not develop a current or chronic cervical spine disability in service, as the service treatment records and immediate post-service treatment records are negative for any diagnosis of or treatment for a cervical spine disability. While the Veteran has a current diagnosis of degenerative disc disease of the cervical spine, the preponderance of the evidence weighs against finding that this disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The evidence of record does not contain a diagnosis of a cervical spine disability prior to 2013, and competent evidence suggesting a nexus with service has not been presented. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the Veteran is competent to report having experienced symptoms of neck pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic disability. The issue is medically complex, as it requires knowledge of orthopedic systems of the body, knowledge the Veteran is not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Veteran has not alleged he is reporting the opinion of a competent expert as told to him, and his assertions have not later been verified by such an expert. The Board also notes that any more recent reports of chronic neck pain contradict the Veteran’s own reports immediately following service of no symptoms of the cervical spine. In conclusion, the preponderance of the evidence is against the award of service connection for a cervical spine disability, as the evidence reflects onset of the Veteran’s current degenerative disc disease of the cervical spine disability many years after service. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel