Citation Nr: 18151993 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-21 117 DATE: November 20, 2018 ORDER Entitlement to service connection for a pinched nerve in neck is denied. Entitlement to service connection for a back injury is denied. FINDINGS OF FACT 1. A pinched nerve in neck did not manifest in service and is not otherwise related to active duty. 2. A back injury did not manifest in service and is not otherwise related to active duty. CONCLUSIONS OF LAW 1. A pinched nerve in neck did not manifest in service and is not the result of disease or injury incurred during active military service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 2. A back injury did not manifest in service and is not the result of disease or injury incurred during active military service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1979 to July 1980. In the Veteran’s June 2015 substantive appeal, he requested a hearing before a Veterans Law Judge. In September 2018, the RO sent a letter to the Veteran’s address of record informing him that his Board hearing was scheduled for October 10, 2018. The Veteran failed to appear at the hearing. Neither the Veteran nor his representative has requested that the appeal should be remanded to re-schedule the Veteran for his Board hearing. Thus, the Board will proceed with adjudication of the issues. 38 C.F.R. § 20.704 (d). Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). In some cases, lay evidence will be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In Jandreau, the United States Court of Appeals for the Federal Circuit stated that a layperson can identify a simple condition like a broken leg, but not a form of cancer. 492 F.3d at 1377, n. 4. Lay evidence may be competent and sufficient to establish a diagnosis where (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, 492 F.3d at 1377. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that varicose veins is a disability that is unique and readily identifiable). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); See also 38 C.F.R. § 3.159 (a)(2) (2018) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person.). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claims for service connection for a pinched nerve in neck and a back injury. For the reasons explained in greater detail below, no such examination was required because the evidence does not indicate that the claimed disabilities, or symptoms thereof, may be associated with the Veteran’s active service. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. A VA examination under the standards of McLendon is not warranted regarding the Veteran’s claims for service connection for a pinched neck nerve and a back injury. As to those claims, there is simply no evidence establishing an “in-service event” during active service, and there is no evidence of an indication that the current disabilities or current symptoms may be related to any alleged in-service event. 1. Entitlement to service connection for a pinched nerve in neck 2. Entitlement to service connection for a back injury The Veteran asserts that his pinched nerve in neck condition and back injury is related to his active service. Specifically, he asserts that he was treated for his back injury in service. Initially, the Board notes that service treatment records are silent as to any neck or back injury. His June 1980 service discharge examination reflects a normal spine and musculoskeletal system, and the Veteran endorsed no back pain. Medical treatment notes dated March 2003 confirm the Veteran has impinging cervical nerves on the C3/C4 and C4/C5 vertebrae, and treatment notes confirm diagnosis of lumbar spondylolysis. Medical treatment records are silent as to any nexus opinion regarding the Veteran’s cervical nerve and/or back condition. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a pinched neck nerve and a back injury. The Board concedes that the Veteran currently suffers from a cervical nerve condition and a back condition. The Board concludes, however, that the greater weight of the evidence is against the claim. Here, the Veteran’s service treatment records do not show any in-service injury, complaint, treatment, or diagnosis of a neck or back condition. Further, records of the Veteran’s post-service treatment reflect that he was not diagnosed with a neck and back condition until twenty-three years after his separation from service. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran’s service and any current neck or back conditions. Absent a medical opinion in the record of a relationship to military service, the Veteran’s claim for service connection for a pinched nerve in the neck and a back injury must be denied. There is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran’s service and his current neck and back conditions. Additionally, the Board notes the Veteran representative’s assertion that an in-service back or neck injury occurred because service treatment records reflect the Veteran was told to “avoid such activities as dancing, bowling, roller-skating, prolonged walking/standing, or other strenuous activity.” However, the Board finds this November 1979 service treatment note was made in reference to an upper respiratory infection (URI) and not a back or neck injury. The Board has considered the Veteran’s lay statements that his neck condition and back condition is related to military service, but finds that he is not competent to opine as to the etiology of these disabilities, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. See Jandreau, 492 F.3d 1372. As such, his lay statement concerning nexus between his disabilities and active service does not constitute competent medical evidence and lacks probative value. (Continued on the next page)   Based on the foregoing, the Board finds that there is no evidence of an in-service event related to the Veteran’s claimed pinched nerve in neck or back injury, and there is no nexus between his pinched nerve in neck or back injury and military service. The preponderance of the evidence is against the claims for service connection for pinched nerve in neck and back injury. The benefit of the doubt doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel