Citation Nr: 1804437 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-13 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for cervical disc disease and protrusions. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1988 to September 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied service connection for among other things, a neck condition with cervical disc protrusions. In November 2010 the Veteran filed his notice of disagreement, and in May 2011 was issued a statement of the case and perfected his appeal to the Board. The Veteran was scheduled to appear at a video conference hearing before a Veterans Law Judge on March 17, 2017. In a March 2017 correspondence the Veteran cancelled his hearing. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's diagnosed cervical disc disease and protrusions are related to his in-service neck injury. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, cervical disc disease and protrusions were incurred in service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has asserted that his neck disorder is the result of an injury he incurred when he hit his head on a bedpost while on active duty in Germany. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's reports of medical history and medical examination upon entrance into service are silent for any issues concerning his neck or back. Service treatment records from September 1989 indicate the Veteran complained of a sharp pain in the back of his neck which was not consistent. January 1990 service treatment records reflect that the Veteran complained of a mid-back injury which occurred during "reforger" while he was taking turrets off and stated that the pain causes discomfort when exercising. The Veteran's July 1990 separation reports of medical history and medical examination are silent as to any indication of a back or neck disorder. In November 2009, the Veteran's private physician stated that the Veteran suffered from cervical disc protrusions with degenerative cervical disc disease and varying degrees of neural foraminal stenosis, as well as chronic low back problems which cause him a great deal of neck and low back pain along with neuropathic pain and radiculopathy. The physician opined that the Veteran's medical problems are more likely than not a result of his work during his military service. January 2010 medical treatment records note that the Veteran was treated for neck pain resulting from motor vehicle accident, and a September 2010 MRI of the cervical spine revealed left sided disc protrusion. In September 2010 the Veteran was afforded a VA examination. The examiner noted that the Veteran stated he initially injured his cervical spine when he hit his head on a bedpost while stationed in Germany, but could not recall the year the incident occurred. The Veteran stated that he complained of neck pain, but did not see anyone for the pain but was given Motrin. He stated that the pain was located at the base of his neck and worsened but he did not seek additional care. The examiner noted a motor vehicle accident one year prior to the examination which had not caused additional problems to the cervical spine. The Veteran reported having difficulty standing for prolonged periods of time which made it difficult to cook for himself, and also mentioned having difficulty driving. The examiner diagnosed the Veteran with cervical spine degenerative disc disease with disc protrusions and neuroforaminal narrowing; and lumbar spine degenerative disc disease with disc bulging and neuroforaminal narrowing with facet arthropathy. The examiner noted that he was unable to verify a chronic cervical or lumbar spine condition based on the service medical record and thus opined that the Veteran's current cervical spine and lumbar conditions are less likely than not related to his one treatment on active duty for a supraspinatus strain. The above reflects that there is evidence of a current cervical spine disability and an in-service neck injury. The dispositive issue in this case is whether there is a nexus between the two. There are conflicting medical opinions on this question, each of which contains a rationale for the conclusion. While the private physician's rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran's military service and events that occurred therein, and subsequent symptoms, made it likely that they had resulted in his current cervical spine disability. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). To the extent that the private physician relied on the service history provided by the Veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the Board finds the Veteran's statements to be competent, credible, and consistent with the circumstances of his service, including his military occupation specialty of combat engineer. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The evidence is thus approximately evenly balanced as to whether the Veteran's current cervical spine disability is related to his in-service injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the diagnosed cervical disc disease and protrusions is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for cervical disc disease and protrusions is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs