Citation Nr: 1140586 Decision Date: 11/01/11 Archive Date: 11/16/11 DOCKET NO. 06-09 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2010 and July 2011, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. FINDING OF FACT The Veteran's cervical spine disability, currently diagnosed as degenerative changes of the cervical spine status post spinal fusion, is etiologically related to active duty service. CONCLUSION OF LAW Service connection for a cervical spine disability, currently diagnosed as degenerative changes of the cervical spine status post spinal fusion, is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for a cervical spine disability as it was incurred due to an injury of the head and neck during service. In statements to VA, the Veteran specified that he injured his head and neck driving a tank while stationed at Fort Hood, Texas. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The record establishes the presence of the first two elements of service connection-a current disability and an in-service injury. The Veteran was diagnosed with degenerative changes of the cervical spine with post fusion changes by VA examiners in September 2010 and August 2011. Similar findings were also noted by a private physician in a March 2005 letter. Although service records do not document any complaints or treatment of neck pain, the Veteran's personnel records confirm that he served as a truck loader and armor crewman at Fort Hood. Service records also note complaints of injuries caused by working around tanks at Fort Hood, including a head injury in March 1963. The Veteran is competent to report injuries during service and based on his statements and the contents of the service records, the Board concludes that an in-service injury is demonstrated. With respect to the presence of a nexus between the current disability and the in-service injury, the record contains medical opinions weighing both for and against the claim. In support of his claim, the Veteran submitted a March 2005 letter from his private physician stating that it was conceivable the Veteran's current cervical spine condition was due to the described in-service accident. This conclusion was based on the Veteran's reports of neck pain since service. In contrast, weighing against the claim are the opinions of two VA examiners. Both the September 2010 and August 2011 VA examiners provided opinions against the claim based on the lack of documentation of neck complaints during service and the many years that passed between the Veteran's active duty and initial treatment. While these medical opinions were rendered following review of the Veteran's service records and other contents of the claims file, the examiners did not take into account the Veteran's reports of a continuity of symptoms since service, despite the explicit July 2011 remand orders of the Board that such a history must be addressed. The failure to address the Veteran's reports of neck pain since service substantially reduces the probative value of these medical opinions. The Board therefore finds that the balance of the evidence of record, including the March 2005 private opinion and the Veteran's account of a continuity of symptoms since service, is essentially in equipoise, and the Board will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are therefore met and the Veteran's claim for service connection for a cervical spine disability is granted. Finally, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. ORDER Entitlement to service connection for a cervical spine disability, currently diagnosed as degenerative changes of the cervical spine status post spinal fusion, is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs