Citation Nr: 18160671
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-03 684
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a cervical spine disorder is denied.

FINDING OF FACT
The evidence of record is against finding that the Veteran’s cervical spine disorder is related to an in-service event, injury, or disease, to include the combat injuries he sustained in July 1968.  

CONCLUSION OF LAW
The criteria for service connection for a cervical spine disorder are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.


REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty service from July 1967 to July 1970, to include service in the Republic of Vietnam.  The Veteran’s service personnel records confirm that he was wounded in combat, for which he received the Purple Heart. 
This case is on appeal before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Veteran has claimed that some of his records were destroyed in the fire at the National Personnel Records Center (NPRC) in 1973.  However, there is no basis for this assertion.  Rather, a May 2013 notice from the VA Record Center and Vault (RC&V) confirms that the Veteran’s records were found.  There is no indication in the claims file that any of his records are missing.  See April 2017 correspondence.  
Neither the Veteran nor his representative have raised any further issues concerning the duty to notify and the duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  
The Veteran seeks service connection for a cervical spine disorder, which he alleges is related to injuries he sustained in combat. 
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R.                § 3.303(d).  
In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999).
Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service.  For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident.  38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d).  However, the provisions of 38 U.S.C. § 1154(b) do not establish a presumption of service connection.  Rather, they ease a combat veteran’s burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected.  Caluza v. Brown, 7 Vet. App. 498 (1995).  That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition.  Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996).
In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, 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.  38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).
The Veteran traces his current condition to combat wounds he received in Vietnam in July 1968.  According to the Veteran, he was on a mission searching for unexploded ordnance.  He was riding in a vehicle over an area that had already been swept, but the engineers missed a shell.  The shell exploded when the vehicle drove over it, and the force of the blast threw the vehicle forward, causing it to land on its nose.  The Veteran was thrown into the front seat, where he wrapped his arms and legs around the sides of the seat and placed his shoulders under the lip of the hatch.  As the vehicle tipped forward, the Veteran was trapped upside down in the seat, and his head was crushed into the ground as it came to rest.  His compatriots dug him out and he was evacuated by air to a field hospital.  The Veteran claims to have suffered from neck, back, and leg pain ever since.  See January 2017 correspondence. 
The Veteran’s service treatment records confirm that he was treated for blast injuries sustained while riding in a truck in July 1968.  Hospital records show that, at the time of admission, the Veteran’s symptoms suggested the possibility of an internal injury.  It was decided to keep him overnight for observation, but his condition remained stable and there were no suspicious signs.  As such, the Veteran was discharged the next day.  There is no mention of a neck injury in the records associated with the July 1968 blast.  Though the Veteran’s June 1970 separation examination indicates that he was wounded in July 1968, it likewise does not contain any references to an ongoing cervical spine disorder. 
A December 1973 VA examination report noted the Veteran’s history of a concussion blast during service. However, the exam report made no mention of any neck or cervical spine complaints.
Indeed, there are no records of complaints or treatment relating to a neck condition until May 2016, when the Veteran was afforded a VA examination.  The examiner conducted an in-person evaluation and reviewed the claims file, diagnosing the Veteran with degenerative arthritis and intervertebral disc syndrome.  The examiner noted that no X-rays were performed in July 1968, and that the Veteran did not seek treatment for neck problems until decades after separation.  Upon examination, range of motion was abnormal and considerably limited.  An X-ray taken in connection with the examination showed mild scoliosis and diffuse mild to moderate degenerative joint disease, which was most severe at the C6-C7 level with mild to moderate disc space narrowing.  As such, the examiner opined that the Veteran’s cervical spine disorder was less likely than not related to service.  This is because there were no complaints of neck pain associated with the Veteran’s July 1968 blast injuries.  Additionally, his June 1970 separation examination was negative for any cervical spine condition.  Moreover, there were no treatment records in the file for any cervical spine condition for over 45 years, with X-rays only recently confirming the existence of degenerative disc and joint disease.  Based on this evidence, as well as a review of medical literature, the examiner concluded that the Veteran’s cervical spine disorder was age-related.  Lastly, the examiner found no evidence that the injuries sustained by the Veteran in the July 1968 blast aggravated a pre-existing neck condition for the same reasons.
Although there is no official record of the Veteran sustaining a neck injury in the July 1968 blast, the combat presumption is in effect.  Nonetheless, the Veteran must still present evidence etiologically linking his current diagnoses of degenerative disc disease and intervertebral disc syndrome of the cervical spine to his combat-related blast injuries from July 1968.  Dalton, 21 Vet. App. at 36-37; Cohen, 10 Vet. App. at 138.  However, after careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s cervical spine disorder is related to service. 
The Board notes that the opinion provided by the May 2016 VA examiner is the only statement from a medical professional addressing the etiology of the Veteran’s cervical spine disorder.  The VA examiner had the benefit of examining the Veteran and the claims file, and provided a clear basis for her medical opinion.  The VA examiner also had the opportunity to review the Veteran’s VA medical records associated with the claims file, and found no relationship between his current cervical spine disorder and the injuries he sustained in service.  The Board thus affords the greatest probative weight to the opinion of the May 2016 VA examiner, and adopts her conclusion that the Veteran has not had a chronic cervical spine disorder since service.        
The Board acknowledges the statements of the Veteran, which attribute his cervical spine disorder to his combat injuries from July 1968.  Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology.  See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology).  For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in May 2016 is more probative than the Veteran’s lay assertions.  The VA examiner has expertise, education, and training the Veteran is not shown to have.  As such, that opinion warrants more weight.
In conclusion, the Board finds that the preponderance of the evidence shows that the Veteran’s cervical spine disorder is not related to service.  Although the Board acknowledges the Veteran’s assertions to the contrary, the majority of the evidence is inconsistent with his statements.  Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 58 (1991).  Thus, the Veteran’s claim for service connection for a cervical spine disorder is denied.    

 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	MJS, Associate Counsel

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