Citation Nr: 18158154 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 11-26 745 DATE: December 14, 2018 ORDER Entitlement to service connection for a cervical spine disability is granted. FINDING OF FACT The probative and competent evidence of record is in equipoise as to whether the Veteran’s cervical spine disability is the result of an incident or injury during service CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to March 1979. In a May 2014 decision, the Board denied the claim. The Veteran subsequently appealed the May 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2016 Memorandum Decision, the Court vacated the Board’s decision and remanded the Veteran’s appeal back to the Board for action consistent with the Court’s decision. Following the Court’s remand, the Board then remanded the case to the AOJ in May 2017, November 2017 and February 2018. Entitlement to service connection for a cervical spine disability The Veteran contends that his current neck disability was caused by his military service. The Board finds that the preponderance of the evidence is at least in relative equipoise as to whether the Veteran’s current cervical spine disability, to include cervical spine spondylosis and cervical spine degenerative disc disease is etiologically related to his active service and warrants a grant of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s service treatment records (STRs) show that he sought treatment for right-sided neck pain with headaches in July 1975 which progressively worsened after exercising. The diagnosis was neck strain. In December 1975, the Veteran sought treatment for neck pain after diving from a diving board. STRs show that he experienced a decreased range of motion (ROM) anteriorly, posteriorly and laterally. The Veteran was diagnosed with a strain and treated with a cervical collar and ice. In December 1976, the Veteran sought treatment for neck pain and was diagnosed with a trapezius neck strain. The record notes that this had reoccurred one time in that last year and a half. The Veteran was also referred to the orthopedic clinic. However, the file does not include any orthopedic clinic records or evidence that X-rays of the Veteran’s neck were taken during service. The Veteran’s separation examination report and Report of Medical History Form from February 1979 are silent for any back or neck defects or complaints. In April 2010, the Veteran was given a VA examination. The Veteran reported to the examiner that, while in the Navy, he was hit in head at damage control school during simulation training and that he has had neck pain ever since. The Veteran further reported that he did not experience a loss of consciousness following the incident. He was treated with reassurances that he was fine and stated that no X-rays taken. The examiner stated he reviewed the Veteran’s STR’s and found one incidence where the Veteran was evaluated for neck pain in 1975. The VA examiner opined that it was less likely than not that the Veteran’s neck disability was caused by his military service. The examiner’s rationale was that the Veteran only reported one injury while in service which is not documented in the STR’s. The examiner further stated that the Veteran had worked as a carpenter all his life hanging crown molding which, required him to look up and bend backwards with his head. In May 2010, the Veteran submitted a statement providing a detailed description of how his injury occurred while in service. The Veteran stated that he was hit in the head with a large shoring timber while performing firefighting operations and damage control training. Although, the force from the timber drove him to his knees, he did “not pass out.” The Veteran stated the next day he went to the “dispensary” and was treated with a “neck brace and pain relievers” for a neck strain. The Veteran also stated that he had only worked as a carpenter hanging crown mold for six years and not “all his life” as the examiner had incorrectly stated. In August 2011, the Veteran submitted a private medical opinion stating, “It is this examiners opinion based on a complete review of the medical record, c-file and medical literature that it is as likely as not, that the trauma sustained by the veteran while on active duty has caused current neck condition.” No rationale was provided with the opinion. The private examiner also acknowledged that there is a gap between the Veteran’s complaints of neck pain during service, and his first post-service treatment record documenting his neck pain. When the examiner asked the Veteran about the gap in treatment, the Veran explained that he was initially able to manage symptoms with medication but he had experienced progressive worsening over time until the condition could no longer be managed on his own. Thus, he sought medical treatment. In March 2014, the Veteran testified at a Board hearing. The Veteran provided details of receiving a neck injury from a piece of timber that fell on his head during a simulation while at damage control training in the navy. The Veteran also stated that he couldn’t afford to seek private medical care for his neck pain after he left the military, so he treated himself with pain medication. The Board had previously determined that negative medical opinions obtained in August 2017 and December 2017 were inadequate. The claim was remanded again in February 2018 in an attempt to obtain a responsive opinion. The Veteran was given a VA examination in September 2018 after which the VA examiner offered a negative opinion, based on the rationale that “no objective evidence of cervical spine degenerative spine disease was found documented on currently available STRs.” After reviewing the evidence, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s current neck disability to include cervical spine degenerative disc disease and cervical spine spondylosis was caused during service. The Veteran’s STR’s document several entries where he sought treatment for neck pain. The December 1976 record states that the neck pain was recurrent over the previous one and half years. The STR’s also document that the Veteran sought medical treatment for neck pain after diving from a diving board. The Veteran experienced a decreased range of motion to his neck following the incident. The Veteran’s records do include any X-rays or any evidence that he was ever given cervical spine X-rays. He was treated with a cervical collar on multiple occasions. The Board acknowledges that the record contains multiple negative opinions. However, the Board does not find the rationale for any of the opinions probative, despite multiple attempts to obtain clarification. The record also contains a private medical opinion from August 2011, supporting the Veteran’s claim that his current neck disability was caused by his military service. However, no rationale was provided to support this opinion. Accordingly, the evidence is at least in relative equipoise as to whether the Veteran’s current neck disability was caused during his active service. The benefit of the doubt is resolved in the Veteran’s favor; service connection for a cervical spine disability must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Perkins, Michael