Citation Nr: 18159040 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-04 485 DATE: December 18, 2018 ORDER Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s DDD of the cervical spine had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for DDD of the cervical spine are met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from May 2002 to October 2002 and served on active duty December 2003 to November 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for a neck condition. Entitlement to service connection for DDD of the cervical spine. At the outset, the Veteran does not contend, nor does the evidence show, that his cervical spine disability occurred during his ACDUTRA service. Therefore, there will be no further discussion regarding ACDUTRA service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the Veteran’s VA Form 9, he claims that his DDD of the cervical spine is related to his active duty military service and that he has had problems with his cervical spine since service. During the June 2016 VA examination, the Veteran asserts that during service, he injured his neck. Specifically, he described that during service, he was slammed to the ground by another soldier during his training week in Guantanamo Bay, Cuba and that he sought in-service medical treatment thereafter. For the reasons below, entitlement to service connection for DDD of the cervical spine is warranted. During the July 2016 VA examination, the examiner diagnosed DDD of the cervical spine. Thus, a current disability has been established. As to the in-service disease or injury element, although the Veteran’s claims file contains his military personnel records, it does not appear to include a complete record of service treatment records (STRs). See September 2014 rating decision citing to an August 2014 memorandum of unavailability of STRs. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Here, the Veteran has submitted multiple statements indicating that during service, he was slammed by another soldier injuring his neck while stationed in Guantanamo Bay, Cuba, and that he sought in-service medical treatment thereafter. See, e.g., VA examination report dated June 2016. In a November 2014 statement, D.W., who served alongside the Veteran from January 2004 to November 2004 in Guantanamo Bay, Cuba, provided a credible account of the day that the Veteran injured his neck during service. Specifically, D.W. reported that he accompanied the Veteran to the Battalion Aid Station after he injured in his neck in their living quarters. The Veteran and his fellow servicemember are competent to describe their observations of occurrences in service, the timing of the observable symptoms after the injury, receipt of medical treatment, and what providers had related about the conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the lay statements about the Veteran’s neck injury and treatment are competent and credible. Moreover, the Veteran’s DD Form 214 reflects service in Cuba. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). The in-service injury element has therefore been met. This case turns on the remaining element of service connection, which is whether the Veteran’s DDD of the cervical spine is related to, or had its onset during, his military service. The Veteran has asserted that he has experienced problems with his neck in and since service. The Veteran, as a lay person, is competent to report problems with his neck in service and continuous neck problems since military service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). His statements, regarding experiencing neck problems in and since service are credible and consistent with the evidence of record. There is no medical opinion indicating a lack of nexus between the current cervical DDD and service, as the July 2016 VA examiner did not offer such an opinion on this question. Moreover, as the above evidence provides a basis for granting service connection, a remand for a request for a medical opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). (Continued on the next page)   The evidence is therefore at least evenly balanced as to whether the Veteran’s DDD of the cervical spine had its onset in service. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to service connection for DDD of the cervical spine is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel