Citation Nr: 1803114 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 13-20 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for cervical disc disease with intervertebral disc syndrome (IVDS) with radiation to both shoulders. ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from June 1984 to August 1984 and from July 1985 to September 1985, and on active duty from June 2004 to August 2005 and from May 2009 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2015, June 2016, and June 2017 the Board remanded the matter for additional development. The case is again before the Board for further appellate review. Briefly, the Board notes the Veteran originally filed claims of entitlement to service connection for a neck condition and for a right and left shoulder condition in May 2010. However, as indicated by the September 2010 and August 2015 VA examination reports, the Veteran does not have a current diagnosis of any shoulder condition. Rather, the examination reports show he has been diagnosed with cervical disk fusion, status post diskectomy, with residual pain in both shoulders, and with intervertebral disc syndrome of the cervical spine. Furthermore, the examination reports show the Veteran had normal musculoskeletal and neurological exams of the shoulders during those examinations. Likewise, the Veteran has asserted his shoulder pain is a result of his neck condition in various lay statements. Therefore, given that the current neck diagnoses encompass the symptoms the Veteran has experienced in his shoulders, and given the lack of medical evidence of any shoulder diagnosis, the Board has compounded the issues on appeal and re-characterized them as a claim for entitlement to service connection for intervertebral disc syndrome of the cervical spine with residual bilateral shoulder pain, as noted above. FINDING OF FACT The Veteran's cervical disc disease with intervertebral disc syndrome (IVDS) with radiation to both shoulders is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for cervical disc disease with intervertebral disc syndrome (IVDS) with radiation to both shoulders are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran reported his current neck condition originally developed while he was deployed in Afghanistan participating in intelligence operations in 2004 and 2005, and that the condition was exacerbated during his second deployment in 2009 and 2010. Additionally, he stated his current condition was incurred during his first period of service while conducting training for intelligence operations in small Ford Ranger pickups while wearing full combat gear and helmet and driving in rugged terrain in Afghanistan. See July 2013 VA Form 9; see also May 2015 VA Form 21-4138. He further stated that at 6 feet, 3 inches tall, his head would constantly hit the ceiling of the car while wearing his helmet, and that the pain in his neck began during this time and has worsened over time since then. He has been diagnosed with degenerative disc disease of the cervical spine in 2007, cervical disk fusion with residual bilateral shoulder pain in a September 2010 VA examination, and intervertebral disc syndrome (IVDS) with radiation to both shoulders in an August 2015 VA examination. Likewise, the Veteran's Forms DD-214 from his two periods of service reflect he was a combat engineer, served in Afghanistan, and was awarded multiple awards and medals, including two Bronze Star Medals and two Army Commendation Medals. The Board finds that the competent evidence of record confirms the he has experienced cervical disc disease with intervertebral disc syndrome (IVDS) with radiation to both shoulders since his separation from service as he is competent to report the occurrence of radiating neck and shoulder pain since it is within his realm of personal or firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is no reason to doubt the credibility of his statements. As such, the Board finds his lay statements are both competent and credible and, therefore, ultimately probative. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the adjudication of this issue turns on whether there is a link, lay and/or medical, between the Veteran's current cervical spine diagnosis and his active duty service. In this regard, the Board notes the Veteran underwent two VA examinations in September 2010, and August 2015, respectively. In the September 2010 examination report, the examiner noted the Veteran stated he was having neck pain, and was seen by a neurosurgeon and had a herniated disk of C5-C6 repair with plate inserted in the cervical spine in 2007. After this, during his second period of service, the veteran was deployed in 2009 and he developed pain in both shoulders and was diagnosed with a pinched nerve in the neck during this time. The examiner noted there was pain at rest in both shoulders. The musculoskeletal exam of the shoulders revealed normal muscle strength and no atrophy, spasm or other muscle abnormalities of either shoulder. The examination report also shows there was no joint swelling, effusion, tenderness, laxity, prosthesis, ankylosis, or other objective joint abnormalities. Likewise, the neurological tests performed revealed fully normal upper extremity function bilaterally. The August 2015 examination report notes the diagnosis of degenerative disc disease (DDD) in 2007 and that the Veteran is left-handed and did not report flare-ups or functional loss of the cervical spine. However, the physical examination did reveal limited range of motion in forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. Pain was noted during the exam but did not result in additional functional loss. The examiner noted the Veteran's IVDS had not had incapacitating episodes requiring prescribed bed rest in the 12 months prior to the examination. The examiner found the Veteran's condition clearly and unmistakably existed prior to his second period of service and therefore was not caused by military service and was not aggravated beyond its natural progression because of service. First, the Board finds the negative opinion of the August 2015 examiner inadequate for adjudication purposes. The opinion fails to consider and discuss the Veteran's lay reports of the events in service. Further, the examiner only considered the Veteran's second period of service and did not address the first period of service. Additionally, the examiner stated there was no evidence in the service treatment records (STRs) of the condition. However, a review of the STRs reveals a record from May 2010, before the Veteran left service, in which he indicated he was experiencing neck and shoulder pain. Given the multiple inadequacies of the medical opinion, the Board will not rely on it in the adjudication of the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Second, the Board finds the Veteran's lay statements are competent and credible evidence. A review of the Veteran's military record shows the Veteran was deployed to Afghanistan on both of his periods of service. His Form DD-214 indicates the Veteran was decorated multiple times with combat medals. Further the Veteran is competent to report the onset and continuation of readily observable symptoms, such as pain. As such, the Board finds the evidence competent, credible, and probative. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the foregoing, and resolving all doubt in the Veteran's favor, the Board finds service connection for cervical disc disease with intervertebral disc syndrome (IVDS) with radiation to both shoulders is warranted. ORDER Entitlement to service connection for cervical disc disease with intervertebral disc syndrome (IVDS) with radiation to both shoulders is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs