Citation Nr: 20003382 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 14-10 769 DATE: January 14, 2020 ORDER Entitlement to service connection for an upper back condition, diagnosed as cervical spondylosis, is granted. FINDING OF FACT The evidence of record does not satisfactorily prove or disprove that the Veteran's upper back disability, diagnosed as cervical spondylosis, is etiologically related to his military duties. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for service connection for an upper back condition, diagnosed as cervical spondylosis, have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1968 to September 1970 and from September 1972 to December 1975. The Veteran is a recipient of the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with device, the Rifle Sharpshooter Badge, and the Combat Action Ribbon. The Veteran also served in the U.S. Coast Guard Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In July 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. In February 2018, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year. 38 C.F.R. §§ 3.307, 3.309(a). When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). Because arthritis is specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is for application in the Veteran's claim of service connection for his cervical spine. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Entitlement to service connection for an upper back condition (also characterized as a cervical spine (neck) condition) A November 2010 private physical therapy record indicates the Veteran’s upper back condition as “resolving C-spine spondylosis/strain.” In February 2011 and September 2012 letters, the Veteran’s private doctor, Dr. R.Z., noted that the Veteran suffered from chronic neck pain with intermittent radiculopathy. Dr. R.Z. noted the Veteran’s military history of carrying over 100 pounds of gear daily on patrol and in combat for months during service. Dr. R.Z. opined that “it is possible that at least part of his current symptoms of chronic neck pain are related to his service as a Marine in Vietnam.” The Veteran was afforded a VA examination in March 2012. The examiner reported a diagnosis of cervical spondylosis and noted that the Veteran had posterior neck pain which the Veteran attributed to his combat service carrying heavy gear and loads across his shoulders. The Veteran denied numbness, tingling, or weakness and had no history of invasive procedures or support devices. Imaging studies of the cervical spine were performed and documented arthritis. The examiner opined that the Veteran’s cervical spondylosis was less likely than not (less than 50 percent probability) incurred in or caused by service. As rationale, the examiner stated that it had been over 40 years since the Veteran’s marine combat experience and that there were no medical data points available over the intervening 40 years. He concluded that it was thus virtually medically impossible to link his current symptoms to something that occurred in the late 1960s with no intervening evidence. In an August 2018 addendum medical opinion, the VA examiner considered the Veteran’s statements regarding carrying heavy loads on patrol and in combat situations. The Veteran reported that the onset of his pain occurred in service and that he had had persistent and chronic back pain since service. The examiner, after reviewing the claims file and assuming as true that the Veteran sustained an injury to his upper back during his combat service, opined that it is less likely than not that the Veteran's post-service upper back condition was incurred in or caused by service. The examiner explained that there was no evidence of back or neck pain for a long period after service, despite the Veteran’s “34-year active duty service” during which he underwent multiple examinations. The examiner specifically noted that from his discharge from active duty in September 1975 to June 1988, the Veteran’s medical examinations show no complaints of back or neck pain. The examiner stated that “I would have expected symptoms from a Vietnam era injury to have at least been present by 1988.” Concluding, the examiner stated that the Veteran’s statements regarding his duties while on active duty “are consistent with a service related injury and degeneration over time and service”; that current degenerative changes are consistent with the period of time that had lapsed; but that a nexus cannot be made between the current upper back condition and active duty, as there is no evidence of continuity of a neck condition until more than 25 years after service. The Veteran’s private treatment records show treatment for several conditions since his discharge from active duty. The private treatment records show no complaints of neck pain until many years after service and, on the contrary, include multiple examinations which found the neck to be normal. The Board also notes that the Veteran reported suffering a work-related upper back injury in 1990 at a 1992 periodic examination for his reserve service. He, however, was otherwise cleared for continued retention in the Coast Guard Reserves. In a 1998 report of medical history, the Veteran stated that the work-related injury was an upper back injury in 1991 for which he received compensation from his employer. He, however, was otherwise cleared for retention in the Coast Guard Reserves. The reserve medical records are otherwise silent for complaints of, diagnosis of, or treatment for an upper back or neck injury. The Board finds that the evidence of record does not satisfactorily prove or disprove that the Veteran's upper back condition, diagnosed as cervical spondylosis, is etiologically related to his military duties. In such circumstances, reasonable doubt is to be resolved in favor of the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ("By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility."); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (reiterating that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits.")). Having resolved reasonable doubt in the Veteran's favor, the Board finds that service connection for an upper back condition, diagnosed as cervical spondylosis, is warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.