Citation Nr: 18152420 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 04-29 053 DATE: November 21, 2018 ORDER Entitlement to service connection for cervical spine disability is granted. FINDING OF FACT It is reasonably shown that the Veteran’s cervical spine disability is related to his military service. CONCLUSION OF LAW The criteria for service connection for cervical spine disability are met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the Army from January 1964 to January 1966, along with additional service in the Army reserves. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York. The Veteran was previously represented in this matter by the American Legion, pursuant to an April 2002 VA Form 21-22. In September 2018, however, the Veteran filed a new VA Form 21-22 that appoints Vietnam Veterans of America (VVA) to act as his representative. The most recent September 2018 VA Form 21-22 supersedes those which preceded it, and the Board recognizes VVA as the Veteran’s current representative of record. The Board notes that this claim has been remanded numerous times, most recently in March 2016. In April 2017, the Board denied the issue of entitlement to service connection for a cervical spine disability. Thereafter, the Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court). In an April 2018 Memorandum Decision, the Court reversed and set aside the April 2017 Board decision and remanded it for further development consistent with the terms in the Memorandum Decision. Entitlement to service connection for a cervical spine disability. As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2018). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2018). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). 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); 38 C.F.R. § 3.102 (2018). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for a cervical spine disability. The Veteran contends that his cervical spine disability pre-existed service and was aggravated by his military service. The Veteran contends that his duties as a cannon crewman, which included lifting 100-pound projectiles to the loader and on occasion lifting 6 to 14-pound bags of propellant, put an extreme amount of strain on his neck and back. The constant lifting and straining adversely affected and aggravated his pre-service injury. The Veteran also contends that he has had continuous symptoms since service. See January 2016 Statement in Support of Claim. In an April 2017 decision, the Board found that service connection was not warranted for a cervical spine disability because the presumption of soundness was rebutted. In other words, the Board found that there was clear and unmistakable evidence that the Veteran’s disease or injury pre-existed service and was not aggravated by his military service. However, in its April 2018 Memorandum Decision, the Court found that the presumption of soundness had not, in fact, been rebutted because VA had failed to carry the burden of proving a lack of aggravation by clear and unmistakable evidence sufficient to rebut the presumption of sound condition. Thus, the Court reversed the Board’s April 2017 decision and remanded it. Because there is no clear and unmistakable evidence of a lack of aggravation, the presumption of soundness is not rebutted. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence); Gilbert v. Shinseki, 26 Vet. App. 48, 53 (citing Horn v. Shinseki, 25 Vet. App. 231, 236). Therefore, the Board will discuss whether the other elements of service connection have been met. According to the Veteran’s service treatment records, a November 1963 pre-induction examination reflects that the Veteran’s spine or other musculoskeletal system was abnormal; the Veteran claimed an old back injury. In January and March of 1964, the Veteran complained of back and neck pain; however, x-rays were negative and he was returned to duty. In a September 1964 clinical psychology report, it was noted that the Veteran’s job was loading 96-pound projectiles into the howitzer. It was reported that there was nothing that had been found by the doctors which could be treated, and it was suggested that the Veteran learn to live with his complaints. In an October 1976 private medical letter, Dr. L.P.M. reported that the Veteran was experiencing radicular pain in his left upper extremity, secondary to a traumatic cervical spondylosis of the C6-C7. Dr. L.P.M. noted that a review of the x-rays recently taken showed definite evidence of joint space narrowing with degeneration of C6, C7 intervertebral disc. In an April 1977 medical report, the physician noted that the Veteran broke his cervical vertebra in 1959 and that the Veteran did not have any complications, but had some arthritis that was non-restricting. A November 1981 or November 1982 Report of Medical History reflects that the Veteran broke his neck at C4, C5 level in 1959, and ever since then, he has had low back and neck pain. It was further noted that in 1981, the Veteran had fusion of C6 and C7 between which the disc had completely degenerated. Furthermore, a November 1988 Report of Medical History revealed that the Veteran had a neck fracture in 1959, which led to chronic arthritis in the cervical and lumbar spine. An August 1998 VA treatment record noted that the Veteran had degenerative joint disease of the cervical and lumbosacral spine, status post several surgeries. In February 2000, the Veteran was diagnosed with cervical myelopathy, secondary to cervical disc disease and probable stenosis. Additionally, the Veteran was afforded numerous VA examinations. Particularly, the July 2015 VA examination showed that the Veteran had been diagnosed with degenerative arthritis of the cervical spine. Based on the foregoing, the Board finds that a grant of service connection based on the theory of continuity of symptomatology is warranted. It is reasonably shown that the Veteran’s cervical spine disability is related to his military service. The Board notes that in its April 2018 Memorandum Decision, the Court found that the Veteran’s pre-existing cervical spine disability was aggravated in service. A review of the medical evidence of record shows that the Veteran continuously complained of neck pain. In October 1976, not too long after the Veteran’s active duty military service, he was diagnosed with degeneration of C6, C7 intervertebral disc. The evidence of record shows that the Veteran continued to have problems with his neck to the present. Thus, the Board finds the Veteran’s statements that he had a cervical spine disability ever since service to be competent and credible. As for the numerous VA medical opinions of record, none of these adequately address the etiology of the Veteran’s cervical spine disability, with consideration of the fact that his pre-existing condition was aggravated in service. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s cervical disability is related to his service. Resolving reasonable doubt in the Veteran’s favor, service connection for cervical spine disability is (CONTINUED ON NEXT PAGE) granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159(c)(4), 3.303(b), 3.309(a) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel