Citation Nr: 18156706 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-59 233 DATE: December 11, 2018 ORDER Entitlement to service connection for a neck disorder (claimed as a neck injury with numbness) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his neck disorder is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for a neck disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to February 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claims file also reflects that the Veteran was denied entitlement to service connection for a head injury in an October 2014 rating decision. In February 2015, the Veteran filed a notice of disagreement (NOD), and a statement of the case (SOC) was issued in October 2016. However, the Veteran did not perfect an appeal of this claim. Thus, the Board does not have jurisdiction to adjudicate this issue. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for a neck disorder The Veteran contends that service connection is warranted for a neck disorder. Specifically, the Veteran relates his neck disorder to an in-service fall from a bunk bed. The Veteran’s service treatment records reveal a December 1977 entry in which the Veteran fell from the top bed and sustained a minor abrasion and laceration to the top of the head. In a December 1978 Report of Medical Examination, the Veteran’s spine was deemed clinically normal. In a July 2001 private treatment record, the Veteran noted that he had head pain throughout the top of his shoulder, into this right forearm, and in the right side of his neck for approximately one month. The Veteran denied any history of trauma or injury. The Veteran also stated that the week prior, he had an episode of neck pain and stiffness, but that he was not having any neck pain when he turned his head to the right. In an August 2012 buddy statement, a fellow serviceperson, J.M., stated that he observed the Veteran fall from a top bunk and land head first on the concrete floor. He also stated that the next day he accompanied the Veteran as he received stitches in his scalp. In an October 2013 statement, the Veteran noted that he fell from his top bunk and landed on the top of his head while in service. He stated that medics were called to see about him, but because it was Christmas, they patched him up the best they could and left to enjoy the holidays. He stated that the next morning, he went to sick call where he received stiches. Upon reviewing the claims file, the Board notes that the Veteran indeed went to sick call on December 26, 1977. In a September 2014 private treatment record, the Veteran complained of neck pain and reported that he had pain in his neck ever since a 1977 military accident. Specifically, the Veteran reported that when he was sleeping, he fell five feet from the top bunk onto his head. He noted that he sustained a laceration on his head and underwent suture repair. He also stated that he underwent an anterior cervical discectomy and fusion in October 2001 and stated that ever since March 2001, his pain had been more frequent and increased in intensity. Impressions revealed cervicalgia, C3 to C5 moderate degenerative disc disease and osteoarthritis, and status-post C5-6 and C6-7 anterior cervical discectomy and fusion. The orthopedic surgeon, Dr. A.G., opined that it was at least as likely as not that the Veteran’s cervical spine condition was related to his December 1977 in-service injury. In support of the opinion, the examiner noted the Veteran’s lay statements and noted that the mechanism of the injury resulted in an injury to his cervical spine. The Veteran was afforded a VA examination in September 2016. The examiner noted a diagnosis of degenerative cervical spine spondylosis with an onset date of July 2001. In an October 2016 VA medical opinion, the examiner opined that the Veteran’s degenerative cervical spine spondylosis was less likely than not incurred in or caused by a fall out of the bed with resulting laceration during service. The rationale provided was that the December 1978 separation examination was silent for a diagnosis of or treatment for a chronic disability with regard to the cervical spine. The examiner also noted that the Veteran’s musculoskeletal spinal examination performed contemporaneous in time was documented as normal. The examiner also discounted the private opinion of record by stating that the opinion did not address the Veteran’s continuity of symptoms since discharge or the medical evidence received in October 2014 in which the Veteran denied past trauma to the neck and onset of symptoms of one month. The examiner also noted that the private examiner did not provide medical literature in support of his opinion. The VA examiner acknowledged the buddy statement, but stated that the Veteran’s service treatment records were silent for continued, chronic treatment of any cervical spine symptoms or a chronic disability secondary to his injury. The examiner also cited that the more likely etiology of disc degeneration and accompanying arthritis was due to age-related changes, rather than due to military service, to include the fall from the bed with resulting scalp laceration treated during military service. Here, the Veteran’s lay statements regarding the circumstances of his in-service neck injury are accepted as credible and persuasive. In this regard, the Veteran has provided a buddy statement, corroborating the in-service incident, relating how he saw him fall and land on his head on concrete. The Board also finds that his statements as to pain since service to be credible, although the medical records do not show continued medical care since service. In weighing the opinions of the private physician and VA examiner, the Board finds that the record is at least in equipoise as to whether the Veteran’s cervical spine disorder is causally related to his in-service fall from a bed. The Board acknowledges the unfavorable VA opinion of record, but notes that the private physician specializes in orthopedics and thus, has significant expertise with the etiology of neck disorders. The private physician also based the favorable opinion upon an examination of the Veteran and a consideration of the Veteran’s medical history and lay statements. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that there is sufficient evidence of record to grant direct service connection for the Veteran’s condition. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ . . . , the nation, ‘in recognition of our debt to our Veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”) Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis, that an in-service event occurred, and a link between such has been established. Thus, service connection for a neck disorder is granted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel