Citation Nr: 1330683 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 05-28 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for residuals of a cervical spine injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board remanded this matter in August 2008, May 2009, April 2011, July 2012, February 2013, and June 2013. FINDING OF FACT The Veteran's current residuals of a cervical spine injury, including a small cervical herniated disc, cannot be reasonably disassociated from his active duty service. CONCLUSION OF LAW The criteria for service connection for residuals of a cervical spine injury, including a small cervical herniated disc, have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). This is so because the Board is taking action favorable to the Veteran by granting the issue of entitlement to service connection for residuals of a cervical spine injury. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be established for disability resulting from personal injury or disease, or for aggravation of a preexisting injury or disease in the active military, naval, or air service. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran served on active duty from August 1985 to August 1987. A May 1986 inservice treatment report noted that he was injured when a grenade simulator accidently exploded near his face and spine. The treatment report noted his complaints of vertigo, and physical examination revealed findings of a deviated nasal septum. A January 1987 inservice treatment report noted the Veteran's complaints of crepitance and stiffness in the mid-cervical area (C3-C6). Physical examination revealed a marked audible noise when his skin was pulled laterally to the left. An x-ray examination of the cervical spine was performed at that time and revealed normal findings, and the report concluded with a diagnosis of soft tissue injury to the cervical spine. A post service private treatment report, dated in September 2002, noted the Veteran's complaints of cervical spine pain since his inservice injury 17 years earlier. X-ray examination of the cervical spine revealed a bony narrowing of the neuro foramin at the lower cervical spine. A December 2002 medical opinion letter was received from the Veteran's private physician, M.B., M.D. In the letter, Dr. B. noted that the Veteran had been investigated and treated for a 17-year history of neck pain, following an inservice injury caused when a grenade simulator detonated nearby. The report noted the Veteran's history of neck pain of varying severity ever since, with no significant pain free periods since the injury. Dr. B. noted that x-ray examination of the cervical spine in September 2002 revealed a bony narrowing of the neuro foramen in the lower cervical spine with no acute fractures or malalignment. Dr. B. then opined that the Veteran's current neck disability relates back to his inservice injury during basic training. In February 2003, the Veteran filed his present claim seeking service connection for residuals of a cervical spine injury. A May 2007 private treatment from S.B., D.O., noted that an magnetic resonance imaging examination of the Veteran's cervical spine revealed a small cervical herniated disc. After reviewing the evidence of record, the Board finds that the Veteran's current residuals of a cervical spine injury, including a small cervical herniated disc, are related to his military service. In making this determination, the Board finds the statements provided by the Veteran, concerning his history of an ongoing cervical spine pain since service to be competent and credible. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (noting that the appellant is competent to testify regarding symptoms capable of lay observation); see also Smith v. Derwinski, 1 Vet. App. 235 (1990) (finding that determination of credibility is a function of the Board). The Veteran's contentions were further supported by his inservice and post service treatment records. The Board also finds the December 2002 medical opinion letter submitted by Dr. B. the most probative medical evidence on the issue of whether the Veteran's current residuals of a cervical spine injury, including a small cervical herniated disc, were related to his military service. The Board acknowledges that multiple negative medical and supplemental medical opinions were obtained by the RO during the course of this appeal. Each of these VA opinions, however, were materially flawed as addressed in the Board's six prior remands. This opinion was based upon a physical examination of the Veteran, a review of his claims file, and the examiner provided a rationale for the conclusion reached. The Board therefore concludes that the April 2008 medical opinion is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In response to the Board's most recent remand in June 2013, the Veteran was provided with a VA examination of the spine in July 2013. Following a physical examination, the VA examiner opined that it was "less likely than not" that the Veteran's current cervical spine disability was related to his military service. In support of this opinion, the VA examiner cited the lack of continuity of care evidence from 1987 to 2007. As noted above, post-service treatment records document the Veteran's complaints of ongoing cervical spine pain beginning in September 2002. Moreover, the Veteran at that time reported having a history of cervical spine since his inservice injury 17 years earlier. Additionally, an x-ray examination of the cervical spine at that time revealed a bony narrowing of the neuro foramen in the lower cervical spine. Thus, the rationale for the medical opinion provided by the July 2013 VA examiner is factually incorrect, and like the previous inadequate VA examinations, is of no probative value. Accordingly, resolving all doubt in favor of the Veteran, service connection for residuals of cervical spine injury, including a small cervical herniated disc, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of cervical spine injury, including a small cervical herniated disc, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs