Citation Nr: 21004519 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-05 403 DATE: January 27, 2021 ORDER Entitlement to service connection for a cervical spine disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that a cervical spine disorder began during active service, or is otherwise related to an incident of service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1964 to September 1966, with additional service in the Army National Guard. He testified before the undersigned Veterans Law Judge during an October 2019 hearing. This matter is on appeal from a June 2014 rating decision and was previously remanded by the Board of Veterans’ Appeals (Board) in December 2019. The Veteran contends that he has a cervical spine disorder related to a motor vehicle accident from July 1983 during a period of active duty. October 2020 statement. A July 2009 statement from a fellow serviceman shows that he reported being a motor vehicle accident with the Veteran during the summer of 1983. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), for residuals of injury incurred or aggravated during inactive duty for training (INACDUTRA), or for residuals of an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C. § 101(24), 106, 1131; 38 C.F.R. § 3.6. Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, presumptive periods do not apply to ACDUTRA or INACDUTRA. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for periods of ACDUTRA or INACDUTRA is not appropriate. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative disc disease, and evidence shows that he reported having a motor vehicle accident, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of degenerative disc disease began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records (STRs) show treatment for a low back strain while moving furniture during a period of ACDUTRA in August 1983. No neck complaints were made in any of the records pertaining to this injury. Statements from the Veteran at that time detail that he was moving a desk and felt pain in his lower back. There is no indication in the Veteran's STRs and personnel records that he sustained a neck injury in a motor vehicle accident during a period of ACDUTRA in the summer of 1983. Private treatment records show that the Veteran underwent an anterior cervical diskectomy in February 1987, several years after separation from his service. He was not diagnosed with degenerative changes until May 2012, decades after his separation from service. 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 arthritis, as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Indeed, arthritis is a disability established by X-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Further, the April 2020 VA examiner opined that the Veteran’s cervical spine disorder is not at least as likely as not related to an in-service injury, event, or disease, including his reported motor vehicle accident. The rationale was that in August 1983, the Veteran was seen for a low back condition, and a line of duty determination, as well as physical therapy, was completed for the low back at that time. At no point was a neck condition mentioned during that period. That obviously contradicted the Veteran's lay statement and hearing testimony. When reading the lay statements from the Veteran and a fellow serviceman, they also contradicted each other and the history of whiplash. The Veteran's statement was that he was pushed into the windshield and landed part of his body on a Jeep, part on the ground. The serviceman’s statement was that the Veteran was pushed down on the windshield and landed on the hood. In the hearing, the Veteran intimated of a cover-up regarding his neck (saying they put moving furniture as a cause). The records have details about the low back injury while moving furniture and physical therapy for a low back issue—not neck. It was unlikely the documentation of evaluation and treatment for a low back condition was a falsification. No neck complaints were documented at that time (which is apparently the same training period as the motor vehicle accident) despite a medical evaluation and referral to physical therapy in August 1983. While the Veteran did have a neck surgery in 1987, and a chronic condition existed since 1987, there is no evidence that that was due to a neck injury on active reserve in 1983. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his cervical spine disorder is related to an in-service injury, event, or disease. He is not competent to provide a nexus opinion regarding this issue because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s opinion in denying this claim. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.