Citation Nr: 18152441 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-52 750 DATE: November 21, 2018 ORDER Entitlement to service connection for a neck disorder, diagnosed as cervical spine degenerative changes, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his neck disorder had its onset in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck disorder, diagnosed as cervical spine degenerative changes, have been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 2004 to August 2004 and December 2007 to December 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2017), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2017). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2017). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a neck disorder, diagnosed as cervical spine degenerative changes. The Veteran asserts that he is entitled to service connection for a neck disorder because he injured his neck while on active duty, which resulted in his current disability of cervical spine degenerative changes. A condition precedent for establishing service connection is the presence of a current disability. In this regard, the Board notes that the Veteran has been diagnosed with and treated for cervical spine degenerative changes, according to an August 2013 VA examination. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran received treatment for a neck injury in December 2007, according to a service treatment record dated December 2007. Accordingly, the Board finds that the second element for establishing service connection has been met. As for the final element of nexus, the Board finds that this element for establishing service connection is mixed. In lay statements provided by the Veteran in April 2014 and October 2016, he claims his neck condition began in December 2007, due to an injury to his neck relating to the physically demanding training and all the extra weight he had to carry and train with for months at a time while he was in service. The Veteran explained that he has participated in physical therapy, has participated in neck exercises, received steroid injections in his neck, and used a neck traction machine at home, the Veteran notes that his neck did get stronger, however he still lives day to day with severe neck pain due to this neck condition and that he has been in pain since his time in service. The record also contains competent medical evidence of a nexus between the Veteran's December 2007 treatment to his neck and his current neck condition, diagnosed as cervical spine degenerative changes by a VA examiner in August 2013. The Veteran's lay statement is competent, credible, and persuasive. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is considered competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, because the lay testimony supports an eventual diagnosis by a medical professional, it must be accorded some weight in the matter. While the August 2013 VA examiner confirmed the Veteran’s diagnosis, the examiner also provided a negative nexus opinion. In the examination’s rationale, the examiner explains that the December 2007 neck injury was a single incident, and that this was not sufficient to establish chronicity of the problem. However, in the same rationale, the examiner went on to explain the episodic nature of the Veteran’s neck condition from 2007 to 2013, which deteriorated and developed into the currently diagnosed cervical spine degenerative changes between 2009 and 2012. The examiner further noted that there are private treatment records that are not associated with the Veteran’s claim file. The VA examiner concluded that the Veteran’s cervical spine degenerative changes was less likely than not related to, associated with, caused by or proximately due to the December 2007 in-service injury. The Board finds that the medical information in the examination provides sufficient probative evidence of a nexus between the Veteran's documented December 2007 in-service treatment for a neck injury and his current neck condition, even though the examiner’s opinion provides the opposite conclusion. The August 2013 medical opinion is not probative because the VA examiner failed to sufficiently explain how an episodic injury which began while the Veteran was in service was not related to service, and the examiner also failed to address an alternative intervening cause for the current diagnosed neck disorder. While the examiner notes that the Veteran’s treatment for a neck injury in service is not sufficient to establish chronicity, a showing of continuity of symptomatology after service can establish service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). The Veteran’s April 2014 and October 2016 lay statements and the noted medical history in the August 2013 medical examination are sufficient to establish a continuity of symptomatology. Moreover, given the nature of the Veteran’s diagnosis of degenerative changes of the cervical spine, which was more specifically noted to include degenerative disc changes based on MRI findings in 2012, continuity of symptomatology may serve as an alternative to a nexus opinion as a disease of the nervous symptoms and/or arthritis. In summary, the Board finds that the most probative and competent evidence of record is at least in equipoise as to a relationship between the Veteran’s currently neck disorder of cervical spine degenerative changes and the Veteran’s period of active service. Accordingly, under these circumstances and granting the Veteran the benefit of the doubt in this matter, the Board finds that service connection for a neck disorder, diagnosed as cervical spine degenerative changes, is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.102, 3.303. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel