Citation Nr: 18129261 Decision Date: 08/27/18 Archive Date: 08/24/18 DOCKET NO. 15-28 140 DATE: August 27, 2018 ORDER Entitlement to service connection for cervicalgia, cervical spondylosis, mild degenerative disc disease at midcervical spine at C3-C4, C4-C5, and segmental dysfunction of the thoracic region is granted. Entitlement to service connection for lumbago, lumber vertebra subluxation, disorder of the sacrum, and spastic paraspinal musculature is granted. FINDINGS OF FACT 1. The Veteran’s cervicalgia, cervical spondylosis, mild degenerative disc disease at midcervical spine at C3-C4, C4-C5, and segmental dysfunction of the thoracic region began during active service. 2. The Veteran’s lumbago, lumber vertebra subluxation, disorder of the sacrum, and spastic paraspinal musculature began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for cervicalgia, cervical spondylosis, mild degenerative disc disease at midcervical spine at C3-C4, C4-C5, and segmental dysfunction of the thoracic region condition are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for lumbago, lumber vertebra subluxation, disorder of the sacrum, and spastic paraspinal musculature are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from December 1997 to August 2004, April 2009 to June 2009, and from June 2010 to September 2010. The Veteran’s active duty status from April 2009 to June 2009 is based on the line of duty determination concluding that her motor vehicle accident occurred in the line of duty. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran presented testimony before the Board in February 2018. The hearing transcript is associated with the record. Following the RO’s May 2012 rating decision, the Veteran submitted additional evidence. The record does not show the Veteran submitted a waiver of initial RO review for this evidence. However, a waiver is unnecessary because the Veteran submitted her Form 9 after February 2, 2013. 38 U.S.C. §7015(2017); 38 C.F.R. 20.1304(c)(2017). Service Connection The Veteran asserts that she injured her neck and low back in a motor vehicle accident in April 2009. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §1110; 38 U.S.C. §3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1): medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). May to September 2009 VA treatment records and April 2009 STR medical records show the Veteran has a current diagnosis of mid-upper back condition to include: cervicalgia, cervical spondylosis, mild degenerative disc disease at midcervical spine at C3-C4, C4-C5, and segmental dysfunction of the thoracic region. See April-May 2009 Medical Treatment Records-Government Facility. 2011 private treatment records and May 2010 physician opinions also show the Veteran has a current diagnosis of low back condition to include: lumbago, lumber vertebra subluxation, disorder of the sacrum, and spastic paraspinal musculature. Id.; See October 2011 Medical Treatment Record-Non Government Facility at 7; see also May 2010 Third Party Correspondence at 4. Additionally, the April 2009 line of duty determination and police report show that the Veteran was involved in a motor vehicle accident while on active duty. The line of duty determination lists the Veteran’s injuries as cervicalgia and other ill-defined sprains and strains. The May 2010 private physician concludes that the Veteran’s mid-upper and low back condition is caused by the Veteran’s motor vehicle accident because the Veteran had no previous auto accidents, no other spinal injuries or problems, and there were no contributing factors that could be categorized as a pre-existing condition. Id. Furthermore, the Board finds the February 2018 hearing testimony of the Veteran regarding the onset of her symptoms after the motor vehicle accident and recurrent symptoms since service to be competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); February 2018 Hearing Transcript at 3-8. The Veteran’s hearing testimony is also consistent with symptoms reported in the February 2011 VA examination. In reaching this determination, the Board acknowledges that the September 2015 VA examiner opines that the Veteran’s mild scoliotic curvature or scoliosis is not related to service because there are no medical evaluations or x-rays and she is unable to determine onset. The VA Examiner also concludes that the Veteran’s service treatment records note neck spasms in December 1998, but there were no other medical evaluation until after service. Because the VA examiner’s opinion is based on an inaccurate factual predicate it is not probative. See Reonal v. Brown, 5 Vet. App. 458 (1993). In sum, May 2009 and August 2010 medical records specifically highlight radiographs were done and subsequent diagnoses were determined. Throughout the Veteran’s medical records, the Veteran makes numerous statements as to back pain onset and the recurrence of symptoms. As such, the Board finds the May 2010 private treatment records and April 2009-July 2010 VA treatment records, and the October 2011 treatment records highly probative as they contain clear conclusions, are supported by data, medical evaluations, and lay statements, and contain a reasoned medical explantation. See Nieves-Rodriguez v. Peake, 22 Vet.App.295 (2008). The Board finds that all three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 101 (21), 101(22)(C), 101 (24),1110, 1131; 38 C.F.R. § 3.303, 3.6(a); Shedden v. Principi, 381 F.3d at 1166-67. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Ijitimehin, Associate Counsel