Citation Nr: 21014159 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 07-27 896 DATE: March 11, 2021 ORDER Service connection for a cervical spine disability is denied. REMANDED A rating higher than 20 percent for a lumbar spine disability is remanded. FINDING OF FACT The most probative evidence is against a finding that the Veteran’s current neck disability had its onset during active duty service or is related to such service; or that arthritis was manifested within one year of the Veteran’s discharge from 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, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to May 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the Board remanded the claims to afford the Veteran his requested Travel Board hearing. In February 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. Due to a technical problem with the audio recording system, a transcript of the Veteran’s testimony was not produced. In an October 2017 letter, the Veteran was afforded another opportunity to testify at a Board hearing and was informed that if he did not respond, it would be presumed that he did not desire another hearing. The Veteran did not respond. The claims were remanded for additional development in December 2017. 1. Service connection for a cervical spine disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In cases where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Veteran seeks service connection for a cervical spine/neck disability. He asserts that he also injured his neck when he sustained the in-service back injury for which he is service connected, and that the neck pain had always been there. Since a May 2016 cervical spine x-ray showed some mild degenerative changes, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Service treatment records do not document any complaint of, or treatment for, any cervical spine/neck problems and the Veteran made no mention of his neck when seeking in-service treatment related to his back. The post-service evidence of record contains conflicting accounts of when the Veteran’s neck problems began. The Veteran underwent a magnetic resonance imaging (MRI) of his cervical spine on March 17, 2005, due to history of right shoulder pain and right hand weakness over the past few days with no history of a specific injury or prior surgery. The MRI showed mild desiccation degeneration of C5-6, C6-7; gentle bulge at C4-5 but without central or foraminal stenosis or neurocompressive change; and prominent right paracentral and foraminal discal extrusion at C6-7. A March 22, 2005 record indicates that the Veteran had woken up two weeks before with excruciating neck pain and a June 2005 treatment record indicates that there was no known mechanism of injury for the onset of neck pain. He underwent anterior cervical discectomy and fusion in October 2005. While seeking treatment privately in July 2009, the Veteran reported that he started having neck pain without any event in 2002/2003; however, the following month he indicate that he had had cervical effusion ever since the in-service back trauma. The preponderance of the evidence is against the claim for service connection for a cervical spine disorder on a direct basis. Service treatment records do not corroborate the Veteran’s report that he injured his neck in service and the Board finds that the post-service evidence of record supports a finding that the Veteran’s neck problems began without incident or trauma after service rather than after an in-service injury to his neck. These records are more persuasive than the Veteran’s assertions that he sustained a neck injury in service. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). Service connection is also not warranted on a presumptive basis in the absence of evidence that the Veteran had arthritis of the neck within one year of his May 1994 discharge from active duty service. While the Veteran believes that his current neck disorder is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a neck disorder are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any neck disorder, to include the assertion that his post-service problems are related to an in-service injury that was not documented, is not competent medical evidence. While the Board acknowledges that no VA examination was conducted in conjunction with this claim, there is no indication of any in-service neck problems and there is no competent and credible evidence suggesting the current neck disability is related to service. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim for service connection for a neck disability, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 2. A rating higher than 20 percent for a lumbar spine disability is remanded. The Veteran failed to report to a May 2019 VA examination of his lumbar spine. His representative has requested that it be rescheduled due to insufficient notice. Updated VA treatment records should also be requested.   The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of the lumbar spine disability. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the lumbar spine should be reported. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.