Citation Nr: 21006289 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-41 381 DATE: February 3, 2021 ORDER Entitlement to service connection for cervical spine condition is denied. FINDING OF FACT The preponderance of the evidence is against finding that a cervical spine disability began during active service or is otherwise related to an in-service event, injury, or disease. 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2020, at which time it was remanded for additional records and a VA examination. A review of the record reveals that there has been substantial compliance with the Board’s prior remand directives as to the issue decided below. See Stegall v. West, 11 Vet. App. 265 (1998). Entitlement to service connection for cervical spine condition The Veteran contends his cervical spine condition is related to service. 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, 1166 -67 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease, or when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Among the diseases listed for which a nexus will be presumed include arthritis. See 38 C.F.R. § 3.307, 3.309. 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. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service treatment records (STRs) are silent for any complaints, diagnosis, or treatment of a cervical spine condition. STRs indicate the Veteran had complaints of a stiff neck, however, this was associated with viral upper respiratory infection with meningismus. Further, there were no findings of any neck condition at his separation examination. Private treatment records show the Veteran was diagnosed with cervical vertebral fusion, spinal canal stenosis, multilevel neural foraminal stenosis, and multilevel disc osteophyte complex in August 2010. An October 2020 VA examiner diagnosed the Veteran with cervical spine multilevel degenerative disc and joint disease and residuals of cervical spine surgery for spinal decompression and fusion. The Veteran was unable to recall any specific injury or medical condition of his neck while in service nor post-service. The examiner noted there was no known mechanism of injury that could lead to the Veteran’s cervical spine condition. The Veteran reported he had neck problems since 1995, which developed with no known injury. Treatment records show the Veteran was seen in 2010 for neck pain and difficulty in keeping his head up straight, and the same year, he underwent cervical spine decompression and fusion surgery. The examiner opined that the Veteran’s cervical spine condition was less likely than not incurred in or caused by an in-service injury, including his complaints of stiff neck during service. The examiner noted there were no complaints of a neck condition that may lead to developing cervical spine degeneration in service. While the Veteran is competent to report having experienced symptoms of neck pain, he is not competent to determine that these symptoms were manifestations of his current disability. The issue is medically complex, as it requires interpretation of complicated diagnostic medical imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds the post-service medical evidence of record demonstrates that the Veteran reported an onset of symptoms in 1995, many years after service. The Veteran did not seek treatment for his neck until 2010. Moreover, the third element of direct service connection requires probative evidence of a nexus between the current disorder and service. Here, the only medical opinion of record regarding service connection is negative. The October 2020 VA examiner determined there was not nexus between the Veteran's current cervical spine condition and his military service. There is also no positive medical evidence to the contrary of these opinions in the claims file and the treatment records do not provide any conflicting information. The Board concludes that the preponderance of the evidence is against the claim for 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). Therefore, the appeal is denied. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, Associate 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.