Citation Nr: 18148439 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-34 963 DATE: November 8, 2018 ORDER Entitlement to service connection for osteoarthritis (OA) of the cervical spine is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his cervical spine osteoarthritis is at least as likely as not related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for cervical spine OA are met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the U.S. Marine Corps form February 1995 to August 2002. This case comes before the Board on appeal from a February 2014 rating decision. Service Connection Claim Generally, to establish 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes arthritis. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. § 1112 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. § 1112 (2012); 38 C.F.R. § 3.307(a)(3) (2017). The application of these presumptions operates to satisfy the “in-service incurrence or aggravation” element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). Entitlement to service connection for osteoarthritis (OA) of the cervical spine Here, the Veteran contends that his cervical spine OA was caused by an in-service injury. Resolving all doubt in the Veteran’s favor, the Board agrees. At the outset, the Veteran has been diagnosed with OA of the cervical spine, meeting the first element of service connection. See March 2011 Private Medical Record. Likewise, the second prong of service connection is met. In the Veteran’s service treatment records (STRs), there are several entries where the Veteran complained of occipital pain of the head and neck, including neck tightness. See e.g., April 2000 STR. Thus, the second prong of service connection has been met. Therefore, the remaining element requires medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. In this regard, there are competing medical opinions. In a March 2013 medical opinion, Dr. S.G., stated that the Veteran reported to sick call complaining of neck and head pain. X-rays were taken of the Veteran’s cervical spine, which showed spondyloarthrosis at mid and lower cervical levels. Dr. S.G. reported that she has become familiar with the Veteran’s medical history and past and present ailments. She stated that she reviewed relevant parts of the Veteran’s military medical record that document his neck condition. Specifically, Dr. S.G. stated that the Veteran’s active duty military medical records indicated that he reported to sick call on several occasions for chronic occipital pain of the neck and head. The Veteran told Dr. S.G. that X-rays were never taken of the occipital region of his neck and head to determine the cause of this pain. The Veteran was prescribed medication to relieve the symptoms. After reviewing the Veteran’s medical records and X-ray findings, Dr. S.G. opined that there is a medical nexus between the Veteran’s active duty service connected neck injury (occipital neck and head pain) and his cervical spine condition today. She added that the Veteran’s condition had worsened with time as he has gotten older. Conversely, in a May 2014 VA medical opinion, Dr. D.T. opined that the Veteran’s cervical spine condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Dr. D.T. reasoned that the Veterans complaints of neck pain in service were all related to part of headache syndromes. They were not a spinal complaint. He stated that the Veteran had no condition of, injury to, or treatment for his cervical spine. Dr. D.T. added that there is no chronologic relationship to these complaints and any spinal condition diagnosed decades later. Therefore, he concluded that there was no medical nexus between the Veteran’s current cervical condition and his in-service complaint of radiating neck pain. The Board notes that both opinions are competent, credible, and of great probative weight. Specifically, both physicians reviewed the relevant evidence, including the Veteran’s contentions at that time, and provided a reasoned conclusion. The Board notes that after both opinions were rendered, the Veteran submitted additional evidence that he was involved in a motor vehicle accident in 1983, which caused whiplash. The Veteran stated that “medical personnel” told him that the whiplash caused the cervical spine injury leading to his complaints of tension headaches during service. See July 2016 VA Form 9. Although the Veteran does not detail the “medical personnel,” a May 2015 opinion from Dr. S.G. reiterates the nexus between the Veteran’s service and his current cervical disability. Even more, the Veteran provided additional medical articles that support a link between occipital headaches and cervical OA. See March 2014 Correspondence. As discussed above, when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). Therefore, resolving all doubt in the Veteran’s favor, the Board finds that it is as least likely as not that the Veteran’s cervical disability was related to his active duty service. Accordingly, the Veteran’s claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel