Citation Nr: 21002293 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-12 125 DATE: January 13, 2021 ORDER Entitlement to service connection for status post cervical discectomy with intervertebral disc syndrome is granted. Entitlement to service connection for right shoulder osteoarthritis is granted. Entitlement to service connection for left shoulder osteoarthritis is granted. Entitlement to service connection for migraines is granted. Entitlement to service connection for depression with anxiety is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s status post cervical discectomy with intervertebral disc syndrome, bilateral shoulder osteoarthritis, migraines, and depression with anxiety are related to a neck injury he experienced during a period of active duty for training (ACDUTRA) in April 2010. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for status post cervical discectomy with intervertebral disc syndrome, bilateral shoulder osteoarthritis, migraines, and depression with anxiety are met.  38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2007 to July 2007 and performed service in the U.S. Army Reserve, to include a period of ACDUTRA from April 2010 to May 2010. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims of service connection for neck/cervical spine condition, left arm condition, right arm condition, migraines, and anxiety/panic attack. The Veteran testified during a virtual Board hearing in January 2021 before the undersigned Veterans Law Judge. As the Board is granting the benefits sought in full, a transcript of that hearing is not necessary. Entitlement to service connection for status post cervical discectomy with intervertebral disc syndrome, bilateral shoulder osteoarthritis, migraines, and depression with anxiety Generally, to qualify for VA benefits, a claimant must be a “Veteran” under the law. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Under 38 U.S.C. § 101(2), a Veteran is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “Veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24). In this case, the Veteran has achieved “Veteran” status as a general matter by virtue of his DD Form 214 that confirms he had active duty service from January 2007 to July 2007. Thus, his qualifying as a “Veteran,” with active military, naval, or air service for disability benefits for a disability resulting from injury or disease incurred during service from January 2007 to July 2007, as well as reference to him as the Veteran, is not in question. For service connection to be granted for any disability resulting from injury or disease incurred during the remainder of his service, it must be shown that the claimed disease or injury was incurred or aggravated during a period of ACDUTRA, or that the Veteran was disabled from an injury incurred or aggravated during a period of INACDUTRA. 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).  The Veteran contends his neck disability, bilateral shoulder disabilities, migraines, and acquired psychiatric disorder are related to an incident that occurred on ACDUTRA in 2010 when he hit his head and jammed his neck while loading a truck. The Veteran and his wife testified that he has experienced symptoms of each disability since shortly after this injury. The Board finds their testimony competent and credible. In January 2016, a VA examiner found it was less likely than not that the Veteran’s status post cervical spine surgery was incurred in or caused by injury of the head/neck between April 17, 2010 to May 2, 2010. The examiner reasoned this was based on medical records containing clinical notes of significant neck pain with shoulder pain and numbness down the right arm that suggested that the Veteran was already suffering from either radiculopathy of the neck or the shoulder joint in 2008 which was later clarified from the MRI of the cervical spine in June 2010 that led to eventual surgery. Therefore, it was highly unlikely that the Veteran’s neck condition is service-connected as there is evidence of a previous issue with the neck prior to service. A January 2021 private opinion found that the Veteran’s chronic neck pain, bilateral arm pain, migraines, and anxiety and panic attacks are more likely than not related to the Veteran’s cervical neck injury during service. For the following reasons, entitlement to service connection for status post cervical discectomy with intervertebral disc syndrome, bilateral shoulder osteoarthritis, migraines, and depression with anxiety is warranted.      The January 2016 VA examination noted a diagnosis of status post cervical discectomy with intervertebral disc syndrome, an August 2012 private treatment record noted a diagnosis of bilateral shoulder osteoarthritis, the January 2021 private opinion noted a diagnosis of migraines, and a private treatment record from September 2011 noted a diagnosis of depression with anxiety. Therefore, the Veteran meets the current disability requirement.    A Line of Duty (LOD) Determination from March 2012 noted that the Veteran hit his head and jammed his neck while loading a truck while on ACDUTRA in April 2010. Thus, he meets the in-service injury or disease requirement. Although the private physician in the January 2021 positive nexus opinion did not provide an extensive rationale, reading the opinion as a whole and in the context of the evidence of record, it is entitled to at least some probative weight given the reference to the in-service injury which is consistent with the evidence of record. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant’s psychological disorder must be considered as “evidence” of whether the disorder was incurred in service). In addition, it is the only nexus opinion of record in regard to the Veteran’s migraine and depression with anxiety disabilities. Moreover, the competent and credible lay statements of the Veteran and his wife indicating that he experienced symptoms of each disability since the injury also support a relationship between these disabilities and the April 2010 ACDUTRA injury. This evidence together is of at least equal weight to the negative nexus opinion. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s status post cervical discectomy with intervertebral disc syndrome, bilateral shoulder osteoarthritis, migraines, and depression with anxiety is related to his injury during ACDUTRA in April 2010. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for status post cervical discectomy with intervertebral disc syndrome, bilateral shoulder osteoarthritis, migraines, and depression with anxiety 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 H. Styer, 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.