Citation Nr: 21009954 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-14 472 DATE: February 23, 2021 ORDER Service connection for neck injury residuals is denied. FINDING OF FACT The Veteran’s neck condition did not onset in service, was not continuous since service, or manifest to a compensable degree within one year of service separation. CONCLUSION OF LAW The criteria to establish service connection for a neck condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1989 to July 1989. He has been incarcerated since approximately 2004. This matter was previously before the Board of Veterans’ Appeals (Board) in July 2019 when the issue was remanded for further development. Further development having been completed; the matter is once again before the Board. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. §§ 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § § 1101; 38 C.F.R. § §§ 3.307, 3.309(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Board is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107(b). Service connection for neck injury residuals is denied. The Veteran contends that he has a neck condition that is related to his service. For the reasons set forth below, service connection for a neck condition is not warranted. February and September 1997 private medical records indicate complaints of mid back pain into the cervical area. Diagnoses of thoracic strain and spasm, acute cervical strain, and thoracic pain were noted. Medical records from the Texas Department of Criminal Justice (TDCJ) show ongoing complaints of and treatment for neck problems. A March 2004 imaging report indicates a reported history of neck pain radiating into the right shoulder. No abnormalities were seen. A 2006 x-ray shows degenerative joint disease (DJD) of the cervical spine. A February 2009 TDCJ medical record indicates reported neck pain, which was described as on and off for several days. A diagnosis of DJD of the cervical spine was noted. A November 2012 TDCJ medical record indicates that a cervical spine x-ray shows narrowing of the C5-C6 interspace with minimal posterior spondylosis and minimal degenerative changes in the uncovertebral articulations. A December 2014 TDCJ medical record shows a diagnosis of lumbago. Multiple service treatment records (STRs) indicate complaints of back pain, to include lower back pain. However, no complaints of neck pain were specifically reported. An undated STR indicates treatment for back pain with numbness and tingling in the hands. No neck pain was noted. Pursuant to the July 2019 Board remand, the Veteran was afforded a VA examination in March 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner opined that the Veteran’s neck condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that the Veteran was in-service for a short period of time. The examiner stated that the STRs do not support a specific injury or significant repetitive trauma. The examiner noted that the record indicates that the first report of a neck condition was in 2004, many years after service separation, but that at that time, MRI showed no abnormalities. Given these facts, the examiner opined that the Veteran’s neck condition was less likely than not incurred in or caused by the claimed in-service injury. Although the Veteran believes that his neck condition is related to his service, he is not competent to provide an etiological opinion in this case. The issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d 1372, 1377. (Continued on the next page)   In conclusion, the preponderance of the evidence is against the claim for service connection for a neck condition. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a neck condition must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.