Citation Nr: 1513069 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 10-16 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a neck disorder, to include as secondary to the service-connected right shoulder disability. 2. Entitlement to service connection for a thoracolumbar spine disorder, to include as secondary to the service-connected right shoulder and cervical spine disabilities. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1984 to February 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A videoconference hearing was held before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is of record. The Board most recently remanded the case for further development in July 2014. That development was completed in regard to the issue decided herein, and the case has since been returned to the Board for appellate review. In light of the full grant of the neck (cervical spine) disorder claim, and based on current manifestations, the Board has recharacterzied the back disorder claim as one for a thoracolumbar spine disorder, as stated above. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains additional documents relevant to the present appeal, including VA treatment records considered by the Agency of Original Jurisdiction (AOJ). The issue of additional benefits for the Veteran's son based on continuous school attendance has been raised by the record, but may still be pending with the AOJ. See, e.g., January 2015 written correspondence in VBMS. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a thoracolumbar spine disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's cervical spine degenerative disc disease with secondary neck strain is related to his active service. CONCLUSION OF LAW Cervical spine degenerative disc disease with secondary neck strain is related to active service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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). Service connection may 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). First, the Veteran has a current diagnosis of cervical spine degenerative disc disease with secondary neck strain. See, e.g., March 2008 VA examination report. Thus, there is a current disability. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Second, the Veteran has contended that his current neck disorder started as a result of an in-service motor vehicle accident. He has indicated that, although his post-service work as a painter aggravated his neck, he had been experiencing neck problems before that time and generally self-treated and learned to live with the symptoms. He has provided competent and credible testimony regarding experiencing ongoing, progressive neck pain since the time of the in-service injury. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); see, e.g., July 2012 Bd. Hrg. Tr. at 5-10 (including report of post-service work with overhead duties, statement against interest which lends credibility to reported history of symptoms). Additionally, the Veteran's service treatment records (STRs) show that he was hit by a car as a child; however, he was determined to be sound at the time of the December 1983 entrance examination as to his relevant body systems, including the neck and spine. See 1969 St. Elizabeth's Hospital private treatment records contained in STRs; December 1983 entrance examination report and report of medical history. The STRs also show that the Veteran was involved in a motor vehicle accident during service where he hit his head and continued to have problems with his neck thereafter. See April 1986 STRs (reported history of accident; assessment of muscle strain of the neck). Therefore, the Board finds there was an in-service event as reported. Accordingly, there is an in-service event or injury. Third, then, the dispositive issue is whether there is a relationship between the current cervical spine disorder and service. As discussed below, service connection is warranted on a direct basis, and as such, no further discussion of entitlement on a secondary basis is necessary in this case. A March 2008 VA examiner determined that the Veteran's current cervical spine degenerative disc disease was less likely as not caused by or a result of the in-service muscle strain of the neck, apparently based on the fact that the current disorder was not shown during service. In providing this opinion, the examiner did not address why the current disorder was not related to the in-service event. The examiner also did not fully address the Veteran and his wife's lay statements as to the nature of his treatment after the injury, as well as his ongoing neck problems thereafter. Therefore, the Board finds that this opinion has little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that a central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts). An April 2013/December 2013 VA examiner determined that the Veteran's current cervical spine degenerative disc disease was less likely than not the result of any events or conditions during military service. In so finding, the examiner indicated that the far more likely cause of the neck disorder was the wear and tear effects of the years of physical labor performed by the Veteran. The examiner noted that the neck muscle strain had an uncomplicated resolution because there was no medical evidence of ongoing symptoms or problems during service and the first documented complaint of neck problems was in July 2007, which was too remote in time to be considered related to service, especially given the mild and resolved nature of the muscle strain during service. In providing these opinions, the examiner did not address the Veteran's competent and credible lay statements of ongoing pain and appeared to require medical documentation of neck treatment. Therefore, the Board finds that these opinions also have little probative value. In a September 2014 addendum opinion, the April 2013/December 2013 VA examiner stated that an assumption that the Veteran had experienced ongoing neck symptomatology since the in-service motor vehicle accident would lead her to positively opine that the claimed neck disorder was related to the in-service event. On review, the Board finds that this opinion establishes a medical link between the in-service event and resulting muscle strain and current cervical spine disorder. The Board expressly found the Veteran's lay statements regarding ongoing neck symptoms both competent and credible. Because the examiner based the opinion on these statements, the Board finds this opinion significantly probative. Accordingly, the most probative evidence of record demonstrates that the Veteran's cervical spine degenerative disc disease is related to service. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for cervical spine degenerative disc disease with secondary neck strain is granted. REMAND Remand is required for the thoracolumbar spine claim to obtain an additional clarifying VA medical opinion. Specifically, the April 2013/December 2013/September 2014 VA examiner diagnosed chronic lumbar spine pain without functional deficit. The examiner determined that the Veteran's current back disorder was less likely than not secondary to any event or condition of service, or to the cervical spine or right shoulder disorders. In so finding, the examiner indicated that the far more likely etiology of the back symptoms was the wear and tear effects of the years of physical labor the Veteran performed. See April 2013 VA examination report and December 2013 VA addendum opinion. The April 2013 VA examination report shows lumbar x-ray findings with an impression of spondylosis; mild wedge compression changes; no subluxation. On review, it is unclear if the VA examiner's opinions contemplate these findings, as the examiner appeared to distinguish between neck conditions and back symptoms or pain in the rationale, and the diagnosis for the thoracolumbar spine on the April 2013 VA examination report only included the chronic lumbar spine pain. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner other than the April 2013/December 2013/September 2014 VA examiner, if possible, as to the etiology of any current thoracolumbar spine disorder. The electronic claims files must be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. First, the examiner must provide all of the Veteran's lumbar spine diagnoses. If the examiner finds that there is no spondylosis or mild wedge compression changes, an explanation must be provided. Second, for each currently diagnosed thoracolumbar spine disorder, the examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including as a result of the motor vehicle accident therein. Third, the examiner must also state whether it is at least as likely as not (a 50 percent or greater probability) that each currently diagnosed thoracolumbar spine disorder, was caused by or permanently aggravated by the Veteran's service-connected right shoulder sprain or now service-connected cervical spine degenerative disc disease with neck strain. In providing these opinions, the examiner must discuss medically known or theoretical causes of any current thoracolumbar spine disorder(s) and describe how such disorders generally present or develop in most cases, in determining the likelihood that the current disorder(s) is related to in-service events as opposed to some other cause. The examiner must also discuss the significance, if any, of the Veteran's reported onset of intermittent incidences of stiffness/soreness to the low back shortly after service in 1989 after physical overuse activities. See April 2013 VA examination report. 2. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. The law requires that all claims that are 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 2014). ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs