Citation Nr: 18153991 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-10 637 DATE: November 28, 2018 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a thoracolumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran does not suffer from a cervical spine disability that was incurred in, manifested within one year of, or otherwise related to service. 2. The Veteran does not suffer from a thoracolumbar spine disability that was incurred in, manifested within one year of, or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1984 to February 1987. This case comes before the Board of Veterans Appeals (Board) from a September 2013 rating decision of a Department of Veterans Affairs (VA) regional office. The Veterans Claims Assistance Act (VCAA) obligates VA to certain notice and assistance procedures to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has claimed that a September 2013 VA examination was “unprofessional” and suggested that the examiner displayed bias towards the Veteran. March 2014 Notice of Disagreement. Absent evidence to the contrary, VA examiners are presumed to have conducted adequate examinations. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their official duties); Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”). The Board discerns no evidence of bias or inadequate conduct of the September 2013 examination. Moreover, the RO obtained a later February 2016 VA examination that essentially corroborates the September 2013 VA examination findings. Consequently, the Board finds no issue with the September 2013 VA examination report. Otherwise, neither the Veteran nor the representative has raised issue with VA’s discharge of its duties to notify or assist. Consequently, the Board need not address such matters here. 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 the appellant fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). VA may also grant service connection for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, presumptive service connection is available for a chronic disease defined by 38 C.F.R. § 3.309(a) even if such disease is not definitively shown as chronic in service, if the evidence demonstrates a continuity of symptomatology since service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the competency, credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006). The Board must determine 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to service connection for a cervical spine disability. The Veteran contends that he warrants service connection for a cervical spine disability diagnosed as degenerative disc disease of the cervical spine. The Veteran specifically contends that the disability relates to an in-service incident where the Veteran sustained blunt force trauma to the neck. A February 1985 service treatment record (STR) reflects the Veteran reported that he was squeezed around the neck and had pain and difficulty swallowing. Although the Veteran did not undergo a separation examination, a June 1985 periodic examination report reflects the spine was normal. A September 2013 VA examination report reflects an opinion that the Veteran’s cervical spine disability was less likely than not related to service. The examiner noted that service treatment records recorded no injury to the spine itself. That neck pain is not noted in VA records until 2012, and ultimately no evidence connected the cervical spine disability to an in-service event or injury. A February 2016 VA examination report from a separate examiner similarly reflects the same conclusion. The examiner opined it less likely than not that the Veteran’s cervical spine disability was related to service. The examiner noted that a February ear nose and throat examination made no mention of a spinal injury. The examiner noted a June 1985 examination taken after the Veteran’s injury assessed the spine as normal. The record does not reflect that the Veteran was diagnosed with his cervical spine disability within one year of service or that he experienced a continuity of symptomatology since service to warrant service connection under a presumptive theory for chronic disease. The Board acknowledges the Veteran’s lay contentions as to the etiology of his cervical spine disability; however, the Veteran may not submit competent testimony as to the medically complex question of the etiology of his cervical spine disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given that STRs contain no diagnosis of the disability from which the Veteran presently suffers, and that two competent medical examiners have opined that the Veteran’s cervical spine disability does not relate to service. The Board finds the evidence preponderates against the claim, and entitlement to service connection for a cervical spine disability is denied. 2. Entitlement to service connection for a thoracolumbar spine disability The Veteran claims he suffers from an upper spine disability due to service. The Veteran has also alleged such disability relates to the in-service neck injury discussed above. The Board has characterized this issue as concerning the thoracolumbar spine to encompass portions of the spine besides the cervical spine. A November 1986 STR reflects the Veteran sought treatment for lower back pain lasting three days after riding his bike. The treatment note appears to assess a back sprain. STRs contain no further mention of any back issues or diagnosis of a back disability thereby indicating the Veteran’s complaints in November 1986 to have been acute and transitory, and not resulting in lasting disability. At the September 2013 VA examination, the examiner found no diagnosis of a thoracolumbar spine condition. The examiner noted the Veteran did not complain of chronic lumbar or thoracic pain but of cervical pain. A May 2014 VA treatment record then shows a diagnosis of “mild degenerative arthritis in the lumbosacral spine” but does not attribute such arthritis to service. The February 2016 VA examiner only remarked that the Veteran complained of neck pain radiating into the shoulder upon examination. Ultimately, the Board finds insufficient evidence of record to establish that any current thoracolumbar spine disability relates to service. Further, the Board does not find the evidence of record sufficiently indicates that any thoracolumbar spine disability might relate to service to warrant further examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), as the Board does not consider the isolated November 1986 STR concerning back pain to sufficiently indicate a potential relationship to the Veteran’s mild degenerative arthritis of the lumbosacral spine diagnosed many years after completion of his active service. The record additionally does not reflect that the Veteran was diagnosed with arthritis for any portion of the spine within one year of service or that he experienced a continuity of symptomatology since service to warrant service connection under a presumptive theory for chronic disease. Consequently, entitlement to service connection for a thoracolumbar spine disability is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel