Citation Nr: 1803077 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 10-06 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a neck disorder, to include as secondary to a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. The appeal returns to the Board of Veterans' Appeals (Board) from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the claim for service connection for a neck disorder. The Veteran timely appealed. A videoconference hearing before a Veterans Law Judge (VLJ) was held in January 2012. A transcript of that hearing has been associated with the claims file. In March 2012, the Board remanded this claim for further development, following which supplemental statements of the case (SSOCs) were issued in April 2013 and February 2014. In March 2016 the Board again remanded to the agency of original jurisdiction (AOJ) for further development. The AOJ undertook this additional development and in September 2016 issued another SSOC. The case now returns to the Board for further consideration. In March 2017 the Board informed the Veteran by letter that the VLJ who had conducted the January 2012 hearing was no longer employed by the Board, and by law the Veteran was offered, and participated in, an additional videoconference hearing with the undersigned VLJ. A transcript of that hearing is also of record. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) has been raised by the record in a December 2012 statement, but has not been adjudicated by the (AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The Board noted this in its March 2016 remand. FINDING OF FACT Competent and credible medical and lay evidence indicates that the Veteran's cervical degenerative disc disease and osteoarthritis is related to events during military service. CONCLUSION OF LAW With resolution of the benefit of the doubt in the Veteran's favor, the criteria for establishing service connection for cervical degenerative disc disease and osteoarthritis have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. Given the favorable decision in this case, no further discussion of VA's duty to notify or assist the Veteran in completing his claim is necessary. Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). The condition must be one listed in 38 C.F.R. § 3.309(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is one such disability. 38 C.F.R. § 3.309(b). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board has reviewed all of the medical and lay evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran has a current diagnosis of cervical spondylosis (cervical osteoarthritis), as shown on contemporaneous X-rays, see chiropractic encounter notes, Columbus VAOPC, June 13, 2012, August 1, 2012; and degenerative disc disease in the cervical spine, see examination notes, April 2013 VA examination. The Veteran contends that his neck disorder is a result of falling approximately 12 feet from a helicopter during a combat assault mission during military service in Vietnam, or the secondary result of a service-connected low back disorder resulting from the same incident. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Id., citing Ardison v. Brown, 6 Vet. App. 405, 407 (2007) (further citation omitted). A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination) and relies on the service medical records alone to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The record contains VA medical opinions from April 2013 and April 2016. The examiners in both the April 2013 and April 2016 examinations were instructed by their respective Board remands to provide opinions regarding both direct service connection and secondary service connection of the neck as resulting from the service-connected back injury. Yet, both examiners relied solely on the absence of any report of neck problems in the Veteran's service treatment records to opine that there was less than a 50 percent probability that the Veteran's current cervical spine condition was directly related to his service. See VA medical opinions of April 2013 and April 2016. In neither opinion did the examiner address or comment on the Veteran's history of in-service injuries, including his reports of his fall from the helicopter and the onset and progression of his symptoms. Thus, the Board finds both the April 2013 and the April 2016 opinions as to direct service connection inadequate under Dalton. The examiner who conducted the April 2013 examination also provided an opinion on secondary connection, which was also inadequate. With regard to secondary connection, the examiner found it "impossible" to opine as to whether the Veteran's service-connected lower back disability had aggravated the Veteran's diagnosed cervical spine problem beyond the normal progression of the disease, because she was unable to say what the "normal progression" of this admittedly progressive disease would be without resorting to "mere speculation." April 2013 VA examination. The Board found that this explanation did not meet the legal standard for an adequate explanation of the inability to render a requested medical opinion. See March 2016 Board remand; Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) (holding that "the inability to render a requested opinion [must be] adequately explained," and the examiner must have "done all that reasonably should be done to become informed about a case"). The Veteran has now undergone three VA examinations-in December 2009, April 2013 and April 2016-without ever having the origin of his cervical spine osteoarthritis and degenerative disc disease explicitly analyzed in connection with his relevant experience in combat in Vietnam. The December 2009 examination explicitly noted trauma to the spine and the date of onset of the Veteran's lower back pain as "approximately 1970," as a result of the fall from the helicopter; however, that examination did not analyze the Veteran's cervical spine. The Board takes judicial notice of the fact that cervical osteoarthritis can result from previous injury. See Cervical Spondylosis, Mayo Clinic, available at https://www.mayoclinic.org/diseases-conditions/cervical-spondylosis/symptoms-causes/syc-20370787, accessed January 11, 2018. In its March 2012 grant of service connection for the Veteran's lower back condition, the Board found the Veteran's description of his fall from the helicopter to be credible and consistent, and the Board articulated a body of evidence suggesting that his lower back problem was related to his military service. Incorporating that evidence herein by reference, the Board now reaches a similar conclusion with respect to the Veteran's cervical spine. In addition to the evidence enumerated by the Board in the March 2012 decision, the Board notes that the testimony given by the Veteran in his September 2017 Board hearing is generally consistent with the testimony given in his January 2012 Board hearing, in which he testified, among other things, that he started having problems with his neck two or three months after separation from service in 1971. In the September 2017 Board hearing the Veteran testified additionally that in his fall from the helicopter, in which he landed on his back after what he estimated to be a 12-foot drop and was bent backward over his backpack, his neck snapped back, without his head hitting the ground. At his January 2012 Board hearing the Veteran explained that at first he did not aggressively seek medical care for symptoms related to his fall from the helicopter because, as the only medic in his platoon, he chose to remain with his combat unit in the field; and after service was discouraged from doing so because he had received an in-service diagnosis of merely a minor lower back strain, dealing with his symptoms in his own way until he could no longer do so because of the growing severity of the symptoms. He also testified that he started having problems with his neck two or three months after discharge from service. The Board notes that the Veteran is competent to provide lay evidence of his symptomatology, to the extent his symptoms are directly observable by him and do not require specialized medical or other training to describe. 38 C.F.R. § 3.159(a)(2); see Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). The Board finds the Veteran a credible reporter of the onset of his neck symptoms and accords considerable weight to his report. Jandreau v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes there is no evidence of record of a previous or intercurrent cause of the Veteran's cervical osteoarthritis and degenerative disc disease. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran's fall from the helicopter and trauma to his spine is well supported in the record, and subsequent treatment for back pain is documented in his service treatment records. Resolving all doubt in favor of the Veteran, the Board finds the Veteran's current cervical osteoarthritis and degenerative disc disease demonstrates continuity of symptomatology since service and thus that that entitlement to service connection for his cervical degenerative disc disease and osteoarthritis is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). ORDER Entitlement to service connection for cervical degenerative disc disease and osteoarthritis is granted. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs