Citation Nr: 21064423 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 15-42 852 DATE: October 20, 2021 ORDER Entitlement to service connection for a cervical spine disorder, characterized as cervical spondylosis, is denied. FINDING OF FACT The Veteran's cervical spine disorder, characterized as cervical spondylosis, was not shown in service or for many decades thereafter, and is otherwise not related to his active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disorder, characterized as cervical spondylosis, have not been 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 served on active-duty service from April 1965 to April 1969. This matter returns to the Board of Veterans' Appeals (Board) following the issuance of August 2018 and March 2021 Board decisions which directed the Regional Office (RO) to undertake additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including arthritis of the spine, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Entitlement to service connection for a cervical spine disorder, characterized as cervical spondylosis The Veteran seeks service connection for a cervical spine disorder, characterized as cervical spondylosis. Specifically, the Veteran has claimed that he injured his neck in service when hit his head on a hatch while aboard a naval vessel in 1967. As an initial matter, the Board notes that the Veteran has been diagnosed with cervical spondylosis. However, after a review of the evidence of record, the Board finds that this claim must be denied. The Veteran's service treatment records are silent for any signs, symptoms, treatment, or diagnoses of a cervical spine disorder or another related disorder. There are no in-service treatment records which indicate that the Veteran suffered a head injury or was treated for one. However, the RO granted service connection for a TBI and essentially conceded that there was an in-service head injury. Additionally, the Veteran's April 1963 separation examination is similarly silent for any indications of a cervical spine disorder and the examiner did not endorse signs, symptoms, treatment, or diagnoses of one. The Veteran was given the opportunity at this time to note any injuries or lingering symptoms of a head injury, including a cervical spine disorder, at this time but chose not to. The first notation of a cervical spine disorder in the Veteran's post service medical records is in a January 2013 treatment note, wherein a cervical spine disorder was diagnosed. The Veteran was seen in January 2013 following a fall in late 2012. At the January 2013 appointment, the Veteran indicated that he began to experience progressive weakness and progressive symptoms following his late 2012 fall. With no prior treatment for a cervical spine disorder shown, continuity of symptoms has not been shown based on the clinical evidence, as there is no indication of symptoms or a diagnosis within one year of the Veteran's separation from service, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While he is competent to report symptoms such as neck pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran's reported history of continued symptoms while competent, is nonetheless insufficient to establish a relationship between his complaints and active service. Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient to establish continuity of symptomology. As an initial matter, the large gap (approximately 44 years since his separation from service, and 42 years since his claimed injury) in treatment for the asserted condition weighs against the Veteran's claims. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Accordingly, service connection based upon continuity of symptoms cannot be conceded, and is not shown. Next, service connection may nevertheless be established if a relationship is otherwise demonstrated by sufficient competent evidence, including medical evidence and opinions. In this case, the Board places significant probative value on the opinions from the April 2021 VA examiner. At the April 2021 examination, the Veteran stated that he had injured his head in service and that his neck pain had consistent since then. The examiner opined that the Veteran's cervical spondylosis was less likely than not related to active-duty service and noted that cervical spondylosis is most associated with the natural aging process. In support of this conclusion, the examiner cited a paper authored by Doctor Johnathon R. McCormick, et al. The examiner noted that there was no indication that the Veteran's cervical spine disorder was related to service, including due to his reported head injury. The Board observes that the Veteran has submitted private treatment records, including from the neurosurgeon who treated him after his 2012 fall. Additionally, the Veteran previously submitted a statement that his neurosurgeon had told him that his cervical spine disorder was the result of his in-service injury rather than the fall he suffered weeks prior to his 2013 evaluation. The Board notes that there are no other statements to this effect from the Veteran's neurosurgeon contained in the many other treatment notes of record. Nor has the Veteran's neurosurgeon submitted a statement themselves attesting to this opinion. Additionally, it is not clear if the Veteran's neurosurgeon has reviewed the Veteran's entire medical file, including service records, in their treatment of the Veteran. As part of this claim, the Board recognizes the statements from the Veteran regarding the relationship between his neck disorder and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as decreased pain and stiffness, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claim of service connection for a cervical spine disorder and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Veteran's appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor