Citation Nr: 20030171 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 18-46 511 DATE: April 29, 2020 ORDER Service connection for a neck disability is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, he began experiencing neck pain while in service and has continued to experience such symptomatology since separating from service. CONCLUSION OF LAW The criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from February 2011 to December 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a neck disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 (Fed. Cir. 2004). The probative value attributed to a VA or private medical opinion issued with regard to a service connection claim depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran’s claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board must consider whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in supporting objective clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that do not indicate whether the physicians actually examined the veteran, do not provide the extent of the examination, and do not provide supporting clinical data) & Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a bare conclusion, even when reached by a health care professional, is not probative without an accurate factual predicate in the record). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Here, the Veteran seeks service connection for a neck disability. As an initial matter, the Veteran has been diagnosed with degenerative disc disease of his cervical spine in October 2016. As such, the Board finds the current disability element is established. Second, there is evidence of an in-service event, disease, or injury. Service treatment records indicate that the Veteran fell off a ladder in March 2012 and reported shoulder and ankle pain. Notably, the Veteran’s entrance examination showed no issues with his spine, but the separation examination showed abnormalities of the spine. The Veteran reported that, after his fall, he was temporarily assigned to the supply division where his neck issue worsened due to increased physical labor. Thus, the Board concludes that the second element of service connection—an in-service event, disease, or injury—is satisfied. As the current disability element of the claim, as well as the in service event, are met, the salient question is whether there is a relationship between the two that would substantiate the nexus element. In this regard, the Board finds that the evidence is at least in equipoise as to whether the Veteran began experiencing neck pain while in service and has continued to experience such symptomatology since separating from service. In this regard, the Board acknowledges that the Veteran underwent a June 2018 VA examination and opinion to assess his neck pain. The VA examiner reported that the September 2010 service enlistment examination was negative for a neck condition and that the August 2014 service separation examination was also negative for a neck condition. Further, the VA examiner stated that VA medical records document reports of neck pain with radiculopathy beginning in 2016. The VA examiner stated that, because service treatment records do not support a neck injury occurring as a result of a documented fall while on active duty, the Veteran’s neck disability was less likely than not related to service. The Board is free to assess medical evidence and is not obligated to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the Board declines to accept the June 2018 VA examiner’s opinion regarding the etiology of the Veteran’s neck disability as the examiner failed to account adequately for the Veteran’s competent and credible lay statements regarding the onset of relevant symptoms. Specifically, the VA examiner failed to mention that the Veteran’s separation examination from active service showed abnormalities of the spine. Additionally, the VA examiner reported that the Veteran started experiencing neck pain symptoms in 2016. However, a review of the record shows that the Veteran asserted the onset of his neck pain began in service in November 2012. Lastly, the VA examiner did not address the continuous treatment and complaints of neck pain addressed in the post service VA treatment records since active service. Accordingly, this June 2018 VA examination and opinion improperly relied merely on the absence of corroborating medical evidence in determining there was no nexus between the Veteran’s current neck disability and his military service, without addressing competent evidence of continuity of symptomatology since service. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) (emphasizing that “symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology” defined in 38 C.F.R. § 3.303(b)). Moreover, in finding against a relationship between the Veteran’s neck disability and his active service, the VA examiner failed to adduce any alternate (nonservice-related) etiology. Thus, the June 2018 medical opinion does not form a sufficient foundation upon which to base a denial of entitlement to service connection. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). In the current appeal, the Veteran asserted that the onset of his neck pain began in service in November 2012. After service, he reported seeing a chiropractor for a year for control of neck pain but states that the therapy was mildly effective. He also stated that after leaving service he was treated by a VA provider who did not treat the Veteran for neck complaints but told to lose weight. The Veteran asserts that he lost 55 pounds but that his neck pain remained. Private medical records indicated that a 2016 MRI revealed disc compression at C5-C6. VA treatment records show the Veteran was seen in February 2016, when he noted pain in his neck. X-rays showed severe cervical muscle spasm. Significantly, the Veteran indicates that his neck pain has progressively worsened over the years to the point where he occasionally feels radiating neck pain. The Board acknowledges that the Veteran is competent to report the onset of neck pain symptoms during his active service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Moreover, lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinsek, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Veteran is certainly competent to report experiencing continuing neck pain symptomatology during, and since, his active service, which are non-medical in nature. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board finds that the Veteran’s reported history of continued neck symptoms since active service is competent and probative in establishing continuity of symptomology. Post-service medical records reflect continued treatment for neck pain, including during the current appeal. The Board recognizes that the June 2018 VA examiner stated that the Veteran’s neck disability was less likely than not incurred in, or caused by, his military service. The examiner, however, based his opinion on what was not shown by the medical evidence in service and also minimized the probative value of the Veteran’s lay complaints of the pain since service and the continuous treatment for the Veteran’s neck disability addressed in VA treatment records since active service. In sum, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s neck pain symptoms began in service and have continued since that time. He is competent to report what he has experienced through his senses, and the Board has no reason to question the credibility of his reports regarding the timeline of his symptomatology onset. These assertions are sufficient to establish the nexus element needed to link his current neck disability to his service—given his in service injury, continuous complaints of neck pain worsening since service, the medical evidence of record of diagnosed degenerative disc disease of the cervical spine, and the continuous treatment for the Veteran’s neck disability addressed in (CONTINUED ON NEXT PAGE) VA treatment records since active service. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a neck disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Dourmashkin, Law Clerk 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.