Citation Nr: 1319334 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-47 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to September 2005. This appeal to the Board of Veterans' Appeals (Board) is from July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. The Veteran has current diagnoses of degenerative disc disease (DDD) and spondylosis of the cervical spine. 2. Resolving all reasonable doubt in the Veteran's favor, a neck disability had its onset in service. CONCLUSION OF LAW The criteria for service connection for a neck disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, though, the Board need not discuss whether there has been VCAA compliance because the claim is being granted, regardless. See, e.g., 38 C.F.R. § 20.1102 (2012) (harmless error). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, the Veteran, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in either timing or content and, moreover, that the error is unduly prejudicial, meaning outcome determinative of her claim). Analysis Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also 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). 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). The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a neck disability that began during his service and has persisted ever since his separation. His service treatment records (STRs) contain references to an injury in 1995 where the Veteran was hit by a rock on the head. He argues that this injury is the cause of his neck disorders. However, the Board also notes that the Veteran's STRs indicate he was in a motor vehicle accident in 1999 and was treated for neck pain, tenderness and muscle spasms in his right shoulder. He separated from service in 2005. During a clinical evaluation in May 2006, decreased range of motion was noted, as well as sharp pains in the cervical region. Diagnoses of cervicalagia (cervical pain) and cervical radiculitis were provided. Chiropractic treatment was suggested. Thereafter, during an October 2006 VA examination for claims not currently before the Board, the Veteran complained of neck pain secondary to trauma. X-rays revealed mild intervertebral osteochondrosis and degenerative changes. In 2008 the Veteran submitted what appears to be a statement dated in April 1995 from a physician that treated him in Vietnam. The statement indicates that X-rays of the skull and cervical vertebrae at that time showed a small fracture of the transversal laminar of the 7th cervical vertebra. Post-service VA treatment records dated through June 2012 have also been considered. These VA treatment records show the Veteran's consistent treatment for and complaints of neck pain. In particular, a February 2009 record provides a diagnosis of spondylosis and states the Veteran has had neck pain for a "number of years." In September 2009, the Veteran was provided a VA examination to specifically determine the nature and etiology of his neck disorder. The examiner noted the Veteran's in-service injury concerning a rock hitting him in the head and the handwritten note indicating possible C7 transversal laminar fracture, but noted the Veteran conceded no such fracture was confirmed when being treated shortly thereafter in Bangkok. The examiner also briefly mentioned the 1999 motor vehicle accident. However, when the Veteran was asked about the accident, he stated he could not recall ever having been seen or treated for an accident. The Veteran denied any other head or neck traumas. The Veteran also reported stiffness in his neck, fatigue, weakness, and lack of endurance. Following a physical examination, the examiner provided a diagnosis of DDD, as confirmed by MRI and X-rays. In rendering an opinion as to the etiology of the Veteran's DDD, the examiner stated it was less likely as not the Veteran's cervical spine disorder is due to his having been hit on the head with a rock in 1995. By way of rationale, the examiner stated that based on history of physical examination, as well as the Veteran's chart, the rock incident did not result in any immediate neck pain. Further, the Veteran indicated his neck pain started a year and a half after the rock incident. Consequently, the examiner determined that the temporal relationship does not support that the rock injury was the cause of the Veteran's neck pain. The Board notes that the examiner did not comment on whether the 1999 motor vehicle accident could be the cause of the Veteran's neck disorder, as opposed to the incident with the rock in 1995, or whether the neck disability first manifested during service. The Board finds that an additional opinion is not necessary to decide this case, however. Specifically, the competent evidence of record confirms that he suffered from neck pain during service. During the year following his discharge from service he also complained of neck pain. In October 2006, only 13 months after discharge from service, X-rays revealed mild intervertebral osteochondrosis and degenerative changes. In summary, the Veteran complained of neck pain following a motor vehicle accident in 1999 in service, complained of neck pain during the year following discharge from service, and was shown to have X-ray evidence of intervertebral osteochondrosis and degenerative changes 13 months after discharge from service. Considering the totality of the evidence and after resolving all doubt in the Veteran's favor, the Board finds that service connection for a neck disability is warranted as directly related to service. ORDER Service connection for a neck disability is granted. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs