Citation Nr: 1334736	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  09-11 138A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a cervical spine disability.

2.  Entitlement to service connection for a bilateral shoulder disability.

3.  Entitlement to an effective date prior to September 1, 2012, for the award of additional compensation for a minor child.   


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

C. Fields, Counsel


INTRODUCTION

The Veteran had active duty service from November 2001 to June 2002 and from June 2005 to September 2006. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Board remanded the issues on appeal for further development in August 2012 and May 2013.  The issue of service connection for left knee disability was also on appeal; however, this benefit was granted in an August 2013 rating decision.  Also in August 2013, the RO awarded additional compensation for the Veteran's minor child effective as of September 1, 2012.  

The paper claims file and paperless files in Virtual VA and the Veterans Benefits Management System (VBMS) have both been reviewed and considered.

The issue of entitlement to an effective date prior to September 1, 2012, for the award of additional compensation for a minor child is addressed in the REMAND portion of the decision and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

The Veteran has current cervical spine and bilateral shoulder disabilities that were incurred as a result of injuries during combat service in active duty.


CONCLUSIONS OF LAW

1.  The criteria for service connection for cervical spine disability have been met.  38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  The criteria for service connection for bilateral shoulder disability have been met.  38 U.S.C.A. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

This decision constitutes a full grant of the benefits sought on appeal with regard to shoulder and cervical spine disabilities.  No further action is necessary assist the Veteran under the Veterans Claims Assistance Act of 2000, in substantiating the claims.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  

Service connection requires 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).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

Here, the Veteran reports that he has had pain in the neck and bilateral shoulders since injury during combat service in Iraq in 2005 and 2006.

The Veteran received a Combat Action Badge, which shows combat service for VA purposes, for activities including videotaping units that were in the direct line of insurgent activity.  Further, his reports of injuries to the neck and shoulders are consistent with the circumstances of such service.  Therefore, his complaints of such injuries and symptoms during service are accepted despite the lack of supporting documentation in service treatment records.  See 38 U.S.C.A. § 1154(b); Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012); 38 C.F.R. § 3.304(d).

To be entitled to service connection, the evidence must also establish a current disability as a result of such in-service injuries.  See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994).

The Veteran is both competent and credible with respect to his observable symptoms such as pain, abnormal sensations, and reduced range of motion in the neck and shoulders, which began during active duty service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  He has made consistent complaints throughout the appeal, and there are also medical records to corroborate his reports of treatment shortly after service.

There is a currently disability.  Testing during the August 2013 VA examination showed objectively decreased limitation of motion in the cervical spine and both shoulders.  The examiner indicated that there was a current cervical spine disorder and a current bilateral shorter disorder, with a diagnosis of splenius cervicis syndrome referred pain levator scapular syndrome and myofascial cervical pain syndrome.  The examiner's opinion indicated that this diagnosis encompassed the symptoms pertaining to both the cervical spine and the shoulders.  Similarly, in a September 2013 letter, a private chiropractor indicated that he agreed with this diagnosis, based on his treatment of the Veteran since 2007 and a summary of symptoms that was consistent with the VA examiner's findings.  

The most probative evidence establishes a link between the Veteran's current disabilities and service.  As discussed above, he is competent and credible with respect to having persistent symptoms in the cervical spine and bilateral shoulders since active duty service in 2005 and 2006.  

Although the August 2013 VA examiner opined that the Veteran's current disabilities were less likely than not incurred during service; this opinion has very little probative value.  It was based on a finding that there was no documentation of neck or shoulder complaints in service, and did not consider the Veteran's lay statements or the combat presumptions.  See 38 U.S.C.A. § 1154(b).  

In contrast, the Veteran's chiropractor opined in a September 2013 letter that the current cervical spine and shoulder disorders were most likely due to his service in Iraq in 2005 and 2006.  This opinion was based on the Veteran's lay evidence concerning injuries during combat service and symptoms since that time, as well as treatment after service since 2007.  The Board places higher probative value on the private chiropractor's opinion because it is based on all available evidence. 

In sum, the evidence reflects current manifestations in the cervical spine and bilateral shoulders diagnosed as splenius cervicis syndrome referred pain levator scapula syndrome and myofascial cervical pain syndrome.  Resolving reasonable doubt in the Veteran's favor, there is a link between such disabilities and his injuries during service.  Therefore, service connection is warranted for the current cervical spine and bilateral shoulder disabilities.  See 38 C.F.R. §§ 3.102, 3.303.


ORDER

Service connection for cervical spine disability is granted.

Service connection for bilateral shoulder disability is granted.


REMAND

In a September 2013 letter, expressed disagreement with an August 2013 decision that had granted additional compensation for a dependent child, effective September 1, 2013.  This was a timely notice of disagreement as to this issue.  38 C.F.R. §§ 20.201, 20.302 (2013).  As a statement of the case (SOC) has not yet been provided, the Board is required to remanded this issue.  Manlincon v. West, 12 Vet. App. 238, 240 (1999).

Accordingly, the case is REMANDED for the following action:

Provide the Veteran with a statement of the case on the issue of entitlement to an effective date prior to September 1, 2012, for the award of additional compensation for a minor child.  This issue should not be certified to the Board unless a timely substantive appeal has been received.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs