Citation Nr: 18160149 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-53 779 DATE: December 26, 2018 ORDER Service connection for degenerative arthritis of the cervical spine (neck disorder) is granted. Service connection for tension headaches, including as secondary to a neck disorder is granted. Service connection for cervical radiculopathy in the left upper extremity, including as secondary to a neck disorder is granted. Service connection for cervical radiculopathy in the right upper extremity, including as secondary to a neck disorder is granted. FINDINGS OF FACT 1. The Veteran is currently diagnosed with degenerative arthritis of the cervical spine; the current neck disorder is etiologically related to an injury sustained during active service. 2. The Veteran is currently diagnosed with tension headaches; the currently diagnosed tension headaches are the result of the service-connected neck disability. 3. The Veteran is currently diagnosed with cervical radiculopathy in the left upper extremity; the cervical radiculopathy in the left upper extremity is the result of the service-connected neck disability. 4. The Veteran is currently diagnosed with cervical radiculopathy in the right upper extremity; the cervical radiculopathy in the right upper extremity is the result of the service-connected neck disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for degenerative arthritis of the cervical spine have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tension headaches as secondary to the service-connected neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for cervical radiculopathy in the left upper extremity as secondary to the service-connected neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for cervical radiculopathy in the right upper extremity as secondary to the service-connected neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from October 1971 to October 1974, from January 1975 to December 1977, and from February 1978 to April 1994. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 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. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently diagnosed with degenerative arthritis in the cervical spine and cervical radiculopathy (as an organic disease of the nervous system) which are listed as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis and organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service connection for degenerative arthritis of the cervical spine The Veteran contends that a current neck disorder is the result of being a paratrooper during service and from a whiplash injury sustained from a serious motor vehicle accident in July 1984 during service. See November 2016 Statement. Initially, the Board finds that the Veteran is currently diagnosed with degenerative arthritis of the cervical spine. See November 2014 VA examination report. After a review of all the lay and medical evidence of record, the Board finds that the currently diagnosed neck disorder is etiologically related to the motor vehicle accident that occurred in July 1984 during service. Service treatment records from July 1984 and August 1984 show the Veteran was involved in a serious motor vehicle accident in July 1984 where he sustained fractures to the right ankle and foot. Service treatment records reflect the Veteran complained of neck pain and that he reported receiving chiropractic care to treat the neck pain. See March 1993 service treatment record. An August 1994 VA examination conducted shortly after service separation shows the Veteran reported upper back and neck problems since the July 1984 motor vehicle accident. The record includes several positive VA medical opinions establishing a nexus between the current neck disorder and active service. In a June 2014 VA opinion, the Veteran’s primary care provider opined that it is more likely than not that degenerative arthritis in the cervical spine developed as a result of the whiplash injury sustained from the motor vehicle accident that occurred during service. In another January 2016 VA medical opinion, the same primary care provider explained that the Veteran sustained a substantial hyperextension injury during the July 1984 motor vehicle accident, which is reflected in service treatment records showing complaints of neck pain and neck stiffness for years after the accident. Further, the VA provider explained that it is a well-known fact in the medical community that severe hyperextension, or whiplash injuries, at a young age can accelerate degenerative arthritic changes in the cervical spine. See also, June 2013 private medical opinion; April 2014 VA opinion. The Veteran underwent a VA examination in November 2014, the examination report for which contains the VA examiner’s opinion that it is less likely than not that the current neck disorder is the result of the July 1984 motor vehicle accident because service examinations before and after the accident revealed no abnormal findings of the cervical spine or complaints relating to the cervical spine; however, the November 2014 VA examiner did not address the service treatment records reflecting complaints of neck pain and reports of chiropractic care to treat the neck pain. The November 2014 VA examiner also did not discuss any long-term impacts of the whiplash injury sustained during the July 1984 motor vehicle accident. Because the November 2014 VA examiner’s negative opinion did not consider the entire medical history, to include the complaints of neck pain during service, the Board finds that it is outweighed by the other positive nexus opinions of record. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for degenerative arthritis of the cervical spine have been met. As service connection is being granted on a direct basis, the full benefit sought on appeal has been granted, leaving no further question of law or fact for the Board to decide under any other theory of service connection, including presumptive service connection for chronic diseases. 38 U.S.C. § 7104. 2. Service connection for tension headaches, including as secondary to degenerative arthritis of the cervical spine 3. Service connection for cervical radiculopathy in the left upper extremity, including as secondary to degenerative arthritis of the cervical spine 4. Service connection for cervical radiculopathy in the right upper extremity, including as secondary to degenerative arthritis of the cervical spine The Veteran generally contends that service connection for tension headaches and cervical radiculopathy in the upper extremities is warranted as secondary to the now service-connected neck disability. See September 2014 Statement; June 2017 Appellant’s Brief. At the outset, the Board finds the Veteran is currently diagnosed with tension headaches and cervical radiculopathy in the upper extremities. See November 2014 VA examination report. After a review of all the evidence of record, the Board finds that the current tension headaches and cervical radiculopathy in the upper extremities is the result of the now service-connected neck disorder. In a June 2014 VA medical opinion, the Veteran’s primary care provider described how the degenerative changes in the cervical spine has caused radicular pain in the upper extremities, which has also precipitated a headache disorder. See also January 2016 VA medical opinion. Further, a November 2014 VA examination report reflects findings and diagnosis for cervical radiculopathy caused by the service-connected neck disorder affecting the brachial plexus nerves in the cervical spine. As the evidence of record does not contain any negative medical opinions to the contrary, the Board resolves reasonable doubt in favor of the Veteran to find that the criteria for service connection for tension headaches and cervical radiculopathy in the upper extremities, as secondary to the service-connected neck disability, have been met. As service connection is being granted on a secondary basis, the full benefit sought on appeal has been granted, leaving no further question of law or fact for the Board to decide under any other theory of service connection, including on a direct, presumptive, or any other basis. 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel