Citation Nr: 1511767 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 10-40 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for residuals of spinal trauma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to May 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The appeal was certified to the Board by the RO in Phoenix, Arizona. The issue on appeal was remanded by the Board for further development in April 2012. In March 2011, a hearing was held before an Acting Veterans Law Judge (AVLJ) sitting at the RO. A copy of the hearing transcript (Transcript) has been associated with the record. The AVLJ who presided at that hearing has retired from the Board. The law requires that the AVLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. As such, the Veteran was issued a letter in December 2014 informing him of his right to attend a hearing before another VLJ. In a signed response, dated December 29, 2014, the Veteran indicated that he did not wish to appear at another Board hearing. FINDING OF FACT Residuals of spinal trauma were incurred during the Veteran's period of active service. CONCLUSION OF LAW Residuals of spinal trauma were incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran alleges that his current diagnosis of cervical degenerative joint disease resulted from his period of military service. He testified that his experience as an operator/gunner on an M578 track vehicle led to the incurrence of this disorder during active duty. See Transcript, p. 3. To that end, the U.S. Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, 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) (2014). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which indicates that arthritis is presumptively-associated with service if diagnosed to a compensable degree within one year of separation. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, the Veteran carries a current diagnosis of degenerative joint disease of the cervical spine, satisfying the first element of Hickson. Turning to the question of in-service disease or injury, the Board notes that the Veteran's service available service treatment records are silent as to a diagnosis of a chronic spinal disorder, and an examination conducted in February 1985 (less than one year following separation) found the Veteran's spine to be normal. The Board notes that, while in-service treatment reports of record are negative for reports of spinal complaints, his Reserve service records are unavailable for review. See Formal Finding, December 21, 2012. In situations such as these, there is a heightened obligation to assist the Veteran in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Post-service, the Veteran submitted a statement in which he indicated that his spinal pain did not come upon him suddenly, but over time. He noted that he never played any full-contact sports, and that he had never been in a serious car accident. He went on to state that, during his time as a gunner for the M578 Tracked Recover Vehicle, he was almost thrown out of the gunner's hatch when the driver skipped a gear. He indicated that he reported to sick call after this incident, but that he remained the gunner for several more months. See Statement, August 15, 2008. The Board notes that the Veteran's DD-214 confirms his military occupational specialty (MOS) of Infantry Fighting Vehicle, among others. As such, the Veteran's statements appear to be consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). A private medical opinion, dated August 13, 2008, stated that the Veteran was diagnosed with degenerative cervical disc disease from repeated trauma, and that he had chronic pain with no history of civilian neck injuries. Another private opinion, received in April 2011, indicated that, due to the nature of the Veteran's injuries, it appeared that he suffered from post-whiplash syndrome in his neck which would clinically correlate to his military background. Several lay statements received in April 2011, from acquaintances of the Veteran, noted that he complained of neck and back pain shortly after separation from active service, and that he consistently attributed such pain, at the time, to his service in military vehicles. Following the April 2012 Board remand, the Veteran was afforded a VA examination in conjunction with his claim in July 2012. The examination confirmed the presence of cervical degenerative disc disease, and the examiner opined that it was at least as likely as not that the diagnosis was incurred in, or caused by, the Veteran's military service. In support of that opinion, it was noted that, following a review the Veteran's VA claims file, statements from private providers, and the lay statements of record, the Veteran's neck and back conditions were consistent with the physical trauma of being "jolted around in tanks." It was also noted that the Veteran's statements in support of his claim were credible and consistent with his military activities, as well as the physical examination and a review of imaging studies. Turning to lay evidence now of record, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Here, the Veteran is competent to report in-service symptomatology, such as back pain, as well as his experiences in military vehicles. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the evidence (submitted by the Veteran and others) is deemed credible, as the Veteran's MOS is commensurate with his claims of in-service spinal trauma. The lay statements of record have therefore been afforded significant probative value due to their competency and credibility in the context of this appeal. The Board notes that there is also supporting medical evidence establishing a nexus between the Veteran's military service and his current diagnosis, in the form of two private opinions and a VA medical report, the latter providing an in-depth rationale in support of that opinion. While VA could undertake additional development to clarify the etiology of the Veteran's spinal disorder, based on the Veteran's competent and credible testimony, lay evidence presented by those close to him, an MOS which serves to corroborate that evidence, and a July 2012 VA medical opinion, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014). Accordingly, the Board concludes that grant of service connection for residuals of spinal trauma is warranted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for residuals of spinal trauma is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs