Citation Nr: 21062445 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-47 109 DATE: October 7, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran's cervical spine disability was incurred in or caused by his active duty service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1982 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for a cervical spine disability was previously before the Board in March 2019, at which time it was remanded for further evidentiary development. Entitlement to service connection for a cervical spine disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (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). Certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 28 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran was diagnosed with degenerative arthritis of the cervical spine during a September 2016 VA examination. Thus, the question remaining before the Board is whether his arthritis is at least as likely as not related to his active service. The Veteran's May 1982 entrance examination was clinically normal with respect to any cervical spine problems, as were in-service examinations conducted in September 1984 and January 1990. The Veteran's service treatment records reveal that he was involved in a three-wheeler accident in October 1986, which resulted in pain in the left shoulder and the right foot. His service treatment records show another complaint of left shoulder and right foot pain in August 1987. However, his service treatment records do not show complaints of neck pain related to the accident. The Veteran was treated during service for intermittent mid-neck pain in October 1991. The record of treatment indicates that his neck had a full range of motion and no point tenderness. He was again treated for neck problems in May 1992, when the examining physician indicated a possible pinched nerve in the neck. The Veteran submitted private medical treatment records in support of his claim. A December 2006 record notes a diagnosis of dysfunctional cervical region. The Veteran also completed a neck pain questionnaire in July 2007, in which he stated that he was having fairly severe neck pain that slightly disturbed his sleep and caused infrequent moderate headaches. In correspondence dated in November 2017, the Veteran stated that he did not have health insurance from 1992 to 1997 and therefore did not seek any treatment for neck problems during that time. The Veteran underwent a VA examination in September 2016, wherein he was diagnosed with degenerative arthritis of the cervical spine. The examiner stated that the Veteran's symptoms were subjective only and that there was no objective evidence of a chronic cervical spine problem. However, her statement is contradicted by her finding of degenerative arthritis. Accordingly, an addendum medical opinion was issued by a different examiner in October 2016. The examiner opined that the Veteran's arthritis is less likely than not related to his active duty service. In support of this opinion, the examiner stated that documented in-service treatment for neck problems showed only an acute condition and that several years passed between the Veteran's separation from service and his arthritis diagnosis. He stated that the Veteran's post-service occupation is more likely to have caused his neck disability. The Board found the October 2016 medical opinion inadequate in its March 2019 decision because the examiner based his opinion on a lack of documented treatment, and this matter was remanded to obtain another medical opinion. An addendum medical opinion was rendered in October 2019. The examiner opined that the Veteran's cervical spine arthritis is less likely than not related to his active duty service. The examiner stated that the Veteran was treated for neck pain during service in January 1987, October 1991, and May 1992 but that each instance of in-service neck pain was acute in nature and did not result in chronic disability. The examiner also noted that the Veteran was injured in a three-wheeler accident in October 1986 but indicated that his service treatment records show treatment for the left shoulder and right foot only. He also pointed out that the Veteran did not have any follow-up treatment that is medically plausible for a cervical spine injury caused by the accident. Following his separation from service, the Veteran worked as a rail car repairman, painter, and welder. The examiner opined that his age and post-service jobs are the most likely cause of his arthritis. The Board finds that the weight of the evidence is against a finding of service connection for degenerative arthritis of the cervical spine. In this regard, the evidence fails to establish that an in-service injury, event, or illness caused the Veteran's arthritis, or that his arthritis manifested itself to a compensable degree within one year of his separation from service. The Board first finds that service connection on a presumptive basis pursuant to 38 C.F.R. § 3.307, because there in insufficient evidence that his cervical spine arthritis manifested itself within one year of his separation from service. Although the Veteran asserts that his neck pain has been continuous since service, he was not diagnosed with arthritis until his September 2016 VA examination. The Veteran has claimed that he did not seek treatment for his cervical spine between 1992 and 1997 because he did not have health insurance. Although the absence of documented treatment for a disability is not fatal to a claim of service connection, the earliest treatment for a cervical spine problem was in December 2006, fourteen years after his separation from service and nine years after the Veteran's period without medical insurance. Therefore, there is insufficient evidence to find that the Veteran's arthritis manifested itself to a compensable degree within one year of his separation from active duty in 1992. See 38 C.F.R. § 3.307(a)(3). The Board also finds that direct service connection is not warranted in this case. As stated by the October 2019 examiner, the instances of neck pain noted during the Veteran's active service were acute in nature and did not result in any permanent disability. Further, the records showing treatment related to the October 1986 three-wheeler accident mention complaints of left shoulder and right foot pain only, and the October 2019 examiner stated that the file does not show any medically plausible evidence that the Veteran's neck disability is related to his in-service three-wheeler accident. The Board acknowledges the Veteran's claims that his neck disability has been present since his active duty service and that the October 1986 three-wheeler accident caused his current arthritis. While the Veteran is competent to report his medical history and symptomatology, he has not presented evidence that he has the medical expertise to render a diagnosis or an etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Accordingly, the only competent evidence regarding etiology are the medical opinions of record. (Continued on the next page) In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Board finds that service connection for degenerative arthritis of the cervical spine is not warranted. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.