Citation Nr: 21027833 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-39 229 DATE: May 6, 2021 ORDER Entitlement to service connection for a neck disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a neck disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck 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 1977 to October 1981. This matter was previously before the Board of Veterans' Appeals (Board) in November 2018 and was remanded to obtain an etiology opinion, which has been completed. Service Connection The Veteran contends his current neck disability is due to his time in service, to include an accident that happened while training at Bridgeport Mountain. This is the only issue on appeal. 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). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of multilevel degenerative changes of the neck, the preponderance of the evidence weighs against finding that the Veteran's neck disability began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with a neck disability until 2017, decades after his separation from service. See June 2017 MRI Cervical Spine. Neck pain was reported in 2015. See September 2015 Physical Therapy Outpatient Discharge Note. While the Veteran is competent to report having experienced symptoms of neck pain, tingling, or numbness since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative changes of the neck. The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges the Veteran's contention that his neck disability began in service following an accident while rock climbing in 1978 more than 40 years ago. Additionally, all efforts to obtain the Veteran's service treatment records (STRs) have been unsuccessful and exhausted. However, even considering these contentions, the missing treatment records, and the provided names of Marines that were with the Veteran during training, the medical evidence explained below provides extremely probative evidence against this claim. The October 2019 VA examiner opined that the Veteran's neck disability is not at least as likely as not related to an in-service injury, event, or disease, including the reported injury sustained in 1978. The examiner reviewed the claims file and examined the Veteran in person. In reaching their rationale, the examiner noted the reported injury in 1978 did not lead to any permanent disability, as the Veteran was released after initial assessment. After exiting service, the Veteran worked in construction, landscaping, and truck driving. While working in landscaping, the Veteran reported neck pain and was on workman's compensation for two weeks in 1994. Simply stated, even if the Board assumes the injury in service occurred, the best evidence in this case indicates that the injury in service many years ago did not cause the current problem. The Veteran's current neck pain is from multilevel degenerative joint disease that was diagnosed in 2016 following an x-ray. The Veteran has also reported tingling and numbness in the hand as part of his diabetic neuropathy but currently does not have any radicular pain or signs of symptoms in the upper extremity. An electromyography (EMG) from 2017 also ruled out radiculopathy. Therefore, the Board finds the October 2019 examiner's opinion probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given this record, the Board finds that the post-service medical evidence also provides highly probative factual evidence, overall, against this claim. See Owens, 7 Vet. App. at 433. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a neck disability in and since service despite the Veteran's claims to the contrary. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (b). (Continued on the next page) The Board also finds that the record does not show that the Veteran's neck disability is due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for a neck disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.