Citation Nr: 18146722 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 04-13 428 DATE: November 1, 2018 ORDER Entitlement to service connection for degenerative arthritis of the cervical spine is granted. Entitlement to service connection for headaches is granted. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the cervical spine is related to service. 2. The Veteran’s headaches are related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the cervical spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1968. This matter arose to the Board of Veterans’ Appeals (Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously denied the Veteran’s claims for entitlement to service connection for headaches and a cervical spine disorder in November 2006. Thereafter, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2009 order, the Court vacated the Board’s November 2006 decision for compliance with the instructions in a December 2009 Joint Motion for Remand (JMR). In August 2010, the Board referred the case for a medical expert onion as set forth in VHA Directive 2006-019 (dated April 3, 2006), and pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C. § 7109 and 38 C.F.R. § 20.901. The corresponding medical opinion was prepared in September 2010 and associated with the claims file. In February 2011, the Board remanded the appeal to the RO to ensure compliance with the terms of the JMR and Court Order. Additionally, in the February 2011 Board decision, it was noted that the Veteran filed a May 2009 VA Form 9 requesting a Travel Board hearing for a separate, yet unclear, issue from those discussed in connection with this appeal. The matter was referred to the RO for appropriate action. The Veteran was scheduled for a hearing in June 2012 before a Veterans Law Judge at the local VA. In May 2012, the Veteran withdrew his request through his representative. The Board therefore finds that the Veteran has withdrawn his request for a hearing before the Board. 38 C.F.R. § 20.704. The Board again remanded this matter in August 2012 for further evidentiary development. Service Connection 1. Entitlement to service connection for a cervical spine disability 2. Entitlement to service connection for headaches Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be shown if "the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage v. Gober, 10 Vet. App. 488, 498 (1997). The Veteran contends that his cervical spine disability and headache are related to service. Specifically, he asserts that he struck his head while escaping from a blown valve aboard ship in 1967, and that he has subsequently experienced disability of the cervical spine and headaches since that time. On review, the Board concludes that the evidence is in equipoise as to whether the Veteran’s degenerative arthritis of the cervical spine and headaches are related to service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records show that the Veteran was seen in August 1967, with a three-inch cut on the top of his head which was sutured. In July 1968, the Veteran reported to sick bay with a head and left earache after being kicked in the ear while swimming. The examiner found a large amount of wax in the left ear. Due to the tremendous headache, the Veteran was prescribed Darvon and instructed to return to the clinic the next day. Additional visits were recorded on subsequent days in July for cerumen build up and otitis externa. On separation examination in October 1968, the Veteran’s spine and head were reported to be normal. The Veteran denied a history of, or the presence of, headaches at an April 1971 U.S. Navy Reserve affiliation examination. Post-service treatment records show complaints of increasing neck pain beginning in the mid-1990s and complaints of headaches beginning in 2001. The Veteran has, in lay statements, however, reported that he had been seen by medical professionals prior to 1996, but had moved around a lot then and did not remember all of the doctors’ names; he also reported that he was not always able to visit a VA facility because of the distance or lack of transportation to get there. Parenthetically, the Board also noted that VA has been unable to obtain records from C.M., M.D. for treatment of the Veteran’s head and neck in the 1980s as they have reportedly been destroyed. He has also reported that he never worked at a job that required heavy lifting nor did he have any accidents at his job that could have caused a neck or head injury. Notably, on VA examination in June 1998, the Veteran reported that his headaches and neck pain began twenty years earlier but had worsened without recent trauma and only a remote history of trauma in service. In subsequent VA treatment records, the Veteran continued to report a history of head trauma in service with the onset of headaches since then. Similarly, the Veteran’s spouse, who had known the Veteran prior to service, in a July 2002 statement reported that after the Veteran separated from service, he complained of headaches that worsened over time. The evidence in this case clearly establishes medical evidence of current disability as well as evidence of in-service occurrence of a head injury as required by governing legal criteria outlines above. The remaining question for the Board is whether there is competent and credible evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. On this point, the Board finds the evidence in relative equipoise. In this regard, the record contains negative medical opinions in April 2006, June 2006, September 2010 and in June 2011 that do not find a relationship between the documented incidents of the Veteran’s service and the post-service diagnoses of degenerative joint disease of the cervical spine and headaches. Notably, the September 2010 examiner in rendering his negative opinion, found no evidence of a chronic ongoing condition that could be associated with the Veteran’s military service and instead found the Veteran’s current cervical spine condition and associated headaches consistent with the Veteran’s age and past job history. The June 2011 VA examiner opined that the Veteran’s work as a welder and pressure cleaner and age were the likely etiologies of the degenerative cervical spine disease. The examiner noted that the Veteran’s degenerative disease was not isolated to his neck and involved the lumbosacral spine as well which is further evidence that active duty including the hatch incident is not the etiology of the cervical spine condition. The examiner found no objective evidence of chronicity of a neck condition which was lacking in the service records and for the next 25 years. The examiner similarly found no evidence of chronicity with respect to the Veteran’s headaches. However, the Board notes that the examiner failed to acknowledge or discuss the competent lay evidence of record including the Veteran’s statements and the statement of his spouse indicating that the Veteran had had recurrent headaches since service, and the Veteran’s statements that he had sought treatment for head and neck pain long before the mid 1990s. Nor did he comment on the several treatment records in which the Veteran reported a history of neck and head pain since service. Presumably in discounting the May 2004 positive opinion, the examiner also stated that the May 2004 VA examiner did not have the claims file to review, which is essential to make a valid opinion. The record also contains positive opinions of record dated in May 2004 and in January 2007 which essentially opine that the Veteran’s disability is as least as likely as not caused by the Veteran’s reported in-service injury. The May 2004 VA examiner essentially stated that the Veteran’s headaches and cervical radicular type pain symptoms were more than likely due to the Veteran’s initial inservice injury and from a purely historical perspective were more than likely service related. The Board has been unable to obtain information regarding the basis of the May 2004 VA examiner’s opinion pursuant to the Court’s order and it appears that the examiner is retired. The Board is thus, unable to determine the appropriate weight to be accorded this opinion in the absence of sufficient detail regarding the basis of the opinion. However, the January 2007 examiner noted that he had reviewed the Veteran’s voluminous records and concluded that the mechanism of in-service injury was consistent with an acute injury to the cervical spine and supportive structures (ligaments, tendons, and other connective tissues) that stabilize the cervical spine and that had led to the currently diagnosed disabilities of degenerative changes of the cervical spine with headaches of a cervicogenic origin. The examiner cited medical literature in support of this conclusion. While he misidentified the April 2006 VA opinion as a positive opinion and stated, in pertinent part, that he agreed with this examiner, the Board notes it was later clarified by the 2006 examiner that there was a typographical error and it was in fact a negative opinion. In any event, the January 2007 examiner provided his own independent conclusion based on his review of the record, his expertise, and relevant medical literature. (Continued on the next page)   The Board acknowledges that there is some conflicting medical evidence of record regarding the etiology of the Veteran’s cervical spine disability and headaches. However, when the overall competent and credible lay and medical evidence of record is considered, and resolving reasonable doubt in his favor, the Board finds that the elements of service connection have been met. The Board therefore, concludes that service connection for degenerative arthritis of the cervical spine and associated headaches is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ryan