Citation Nr: 1602886 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 08-30 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a cervical spine disability, to include a herniated disc in the cervical spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to March 1991, with other periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board previously remanded this issue in July 2012 and September 2014. FINDING OF FACT The probative, competent evidence demonstrates that the Veteran's herniated disc in the cervical spine is related to active duty service. CONCLUSION OF LAW The criteria for service connection for a herniated disc in the cervical spine have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1154, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306, 3.307 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for a herniated disc in the cervical spine, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110; 38 C.F.R. §3.303. Establishing service connection generally requires medical, or in certain circumstances, lay evidence of 1) a current disability; 2) an in-service incurrence or aggravation of a disease or injury; and 3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2015). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The Veteran asserts that she has a cervical spine disability which began during active duty service. Specifically, she reported that she developed back and neck pain because of her job duties which included heavy lifting, riding over rough terrain, and climbing steps while carrying heavy loads for long periods. She reported seeking treatment for back and neck pain during active duty service and receiving medication management. With respect to a current disability, the record reflects a diagnosis of a herniated disc in the cervical spine. The Veteran has also reported symptoms of back and neck pain throughout the pendency of the appeal. Given the diagnosis and ongoing complaints of back and neck pain, the Board finds the Veteran has demonstrated a current disability for service connection purposes. With respect to an in-service event or injury, as noted the Veteran sought treatment for back pain during service. She sought medical treatment and was diagnosed with back pain in January 1991. The Veteran was advised to rest and take medication. At separation from active duty service the Veteran asserted that she was in good health but that she was taking medication for back pain. The Veteran reported to several sources that she had a cervical spine surgery five months after separating from active duty service. As such, the Board finds that the Veteran has established an in-service event for service connection purposes. With respect to a nexus between the Veteran's cervical spine disability and active duty service, the Board affords limited probative weight to the negative opinions of the VA examiner. The Veteran underwent VA examination in October 2012. The VA examiner diagnosed the Veteran with cervical spine spondylosis and prior posterior discectomy C5-6 and opined that there was no nexus between the Veteran's military history and her current condition. However, the VA examiner cautioned that he did not have all of the records available to him. When the Board remanded the case again in September 2014 the VA examiner was advised to render another opinion given the updated medical evidence added to the claims file. In March 2015 the VA examiner rendered another opinion where he referenced the new medical evidence but noted that this new evidence did not change his original opinion that there was no nexus between the Veteran's military history and her current condition. The VA examiner did not cite to any relevant medical studies or literature to substantiate the findings. Additionally, the VA examiner did not provide sufficient rationale either of his opinions. Based on the minimal rationale as evidenced by the lack of medical support, the Board affords these opinions limited probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion, not from the mere fact that the claims file was reviewed). Conversely, the Board affords the Veteran's own statements significant probative weight. During her VA examination in September 2012, the Veteran reported having back pain and neck pain which began during service. Moreover, in her lay statements the Veteran has consistently reported that her back pain and neck pain began when she was doing heavy lifting during active duty service. The Veteran has also consistently reported to several sources that she needed cervical spine surgery several months after separation from service. The Board finds that the Veteran is competent and credible to report the symptoms of her back and neck pain, and that she has consistently reported that it began during service and has been present since then. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a veteran's lay statements may be sufficient evidence in any claim for service connection); see also 38 U.S.C.A. § 1154(a), 38 C.F.R. § 3.303(a). Based on the foregoing, the Board finds that the probative, competent evidence demonstrates that the Veteran's cervical spine disorder is related to active duty service. Therefore, service connection for a herniated disc of the cervical spine is granted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a herniated disc in the cervical spine is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs