Citation Nr: 1800467 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-15 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a neck disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to December 1965. He also served in the Army National Guard from December 1965 to February 1976, with periods of active duty for training from July 20, 1975, to August 3, 1975. This matter comes before the Board of Veterans Appeals' (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a Decision Review Officer hearing in July 2008 and before a Veterans Law Judge in a May 2013 Board hearing. Transcripts of both hearings have been associated with the file. The VLJ who presided over the May 2013 hearing is no longer with the Board. The Veteran received notification of such in October 2017, and has not requested an additional hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Finding all reasonable doubt in the Veteran's favor, his neck disorder is etiologically related to and had its onset during his active military service. CONCLUSION OF LAW The criteria for service connection for neck disorder have been met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Given the favorable outcome of this decision, a further discussion of the notice, development and assistance actions accomplished during the course of the appeal is unnecessary. See U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Generally, to establish direct service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background and Analysis There is competent and credible medical evidence of record to indicate neck disorder diagnoses to include cervical spine disease, severe neck pain, severe degenerative disc disease, degenerative disc and facet joint changes lower cervical spine, and degenerative joint disease. The majority of these diagnoses occurred within the appeal period. The Veteran provided credible testimony that he experienced injury to his neck in August 1975 when he fell into a ditch off a personal carrier that was traveling 40 miles per hour, and then had another service member who was riding on top of the carrier land on his neck. He provided competent, credible testimony that he first experienced symptoms of a neck disorder after this accident, and his symptoms have continued since. A July 1975 line of duty determination indicated the Veteran experienced a chest injury to include a bruised sternum in the line of duty after the vehicle he was riding in the field hit a ditch. He was referred to an Army hospital for x-rays and treatment. On review of the evidence for record, the Board finds that the Veteran's neck disorder is shown to be caused by the accident in service. In other words, service connection for a neck disorder is warranted. The Board notes that there are three VA medical opinions of record, dated May 2014, June 2016, and May 2017-none of which provide clear rationale. Therefore, little probative value will be placed on these opinions. There are several VA medical notes of record that indicate complaints of and treatment for neck disorder, with several of the records dating years prior to the Veteran's filing of the petition to re-open the claim. A VA progress note dated April 2002 indicates a history of cervical spine disease second to National Guard accident in August 1975. A VA internal medicine record dated November 2002 noted joint pain especially around the Veteran's sternum secondary to an old accident in 1975. These examiners both agree that the Veteran's neck disorder is related to the in-service accident in 1975. As these VA examiners have treated the Veteran, are familiar with his medical history and both formed the same opinion, the Board finds these opinions to be highly probative. Although the May 2014, June 2016, and May 2017 VA examiners opined that there is no connection between the Veteran's neck disorder and his in-service accident, the Board finds that the other evidence of record including the two VA opinions by treating examiners, the medical personnel records, and the Veteran's credible, competent testimony outweigh the 2014, 2016, and 2017 negative VA opinions. In sum, the preponderance of the evidence shows that the Veteran's neck disorder is related to his in-service accident. Service connection is warranted. ORDER Service connection for neck disorder is granted. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs