Citation Nr: 21003978 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-41 948 DATE: January 25, 2021 ORDER New and material evidence having been received, reopening of service connection for a cervical spine disorder is granted. Service connection for cervical disc disease and cervical spondylosis is granted. Service connection for tension headaches, as secondary to now service-connected cervical spine disabilities, is granted. FINDINGS OF FACT 1. A January 2010 RO rating decision denied service connection for a cervical spine disorder, finding no currently diagnosed cervical spine disorder that was attributable to service. The Veteran did not file a timely Notice of Disagreement (NOD) following the January 2010 rating decision, and new and material evidence was not received during the one year appeal period. 2. New evidence received since the January 2010 rating decision relates to an unestablished fact of a currently diagnosed cervical spine disorder that may be related to an in-service motor vehicle accident. 3. The Veteran is currently diagnosed with the cervical disc disease and cervical spondylosis. 4. The currently diagnosed cervical spine disabilities are due to an in service motor vehicle accident. 5. The Veteran is currently diagnosed with tension headaches. 6. The currently diagnosed tension headaches are due to the now service-connected cervical spine disabilities. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for a cervical spine disorder became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the January 2010 rating decision is new and material to reopen service connection for a cervical spine disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for cervical disc disease and cervical spondylosis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tension headaches, as secondary to service connected cervical spine disabilities, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1988 to September 2009. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified at an October 2020 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for all of the issues on appeal, no further discussion of VA’s duties to notify and assist is necessary. Service Connection Law and Regulation Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cervical spondylosis, as arthritis, is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to the question of service connection for a low back disorder. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (emphasis added). Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is “noted” at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe, 7 Vet. App. at 246. 1. Reopening Service Connection for a Cervical Spine Disorder A January 2010 RO rating decision denied service connection for a cervical spine disorder, finding no currently diagnosed cervical spine disorder that was attributable to service. The Veteran did not file a timely NOD following the January 2010 rating decision, and new and material evidence was not received during the one year appeal period. As such, the January 2010 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. Since the January 2010 RO rating decision, VA has received multiple VA and private treatment records showing a diagnosis of one or more cervical spine disorders. Further, VA has also received a private medical opinion indicating that one or more cervical spine disorders may be due to an in-service motor vehicle accident. Such evidence is new and material to warrant reopening of the issue of service connection for a cervical spine disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Service Connection for a Cervical Spine Disorder The Veteran seeks service connection for a cervical spine disorder, which has been attributed to an in-service motor vehicle accident. During the course of this appeal the cervical spine issue has been developed as an aggravation issue. At the outset, the Board will address whether this truly is an aggravation service connection issue. Service treatment records reflect that, prior to entering service in September 1988, the Veteran received a pre-service examination in March 1988. The Veteran’s spine was noted to be normal at that time. Subsequently, in June 1988, the Veteran was involved in a pre-service motor vehicle accident. While the Veteran complained of neck pain, X-rays taken at that time were normal. Per an August 10, 1988 examination letter, the diagnosis was a cervical sprain relating to the pre-service motor vehicle accident. On August 22, 1988, the March 1988 service entrance examination report was amended to reflect that the Veteran was no longer qualified for service, pending additional development concerning the pre-service motor vehicle accident and neck injury. Subsequently, on September 8, 1988, the March 1988 service entrance examination was again amended to reflect that the Veteran was now considered qualified for service; however, it does not appear that the entrance examination was amended to diagnose a pre-existing neck disorder. Presumably the service examiner assessed that the pre-service motor-vehicle-accident-related cervical strain had resolved prior to service entrance without residual. Such a finding is consistent with the fact that multiple subsequent in-service examination reports did not show a diagnosis of a cervical spine disorder. Service treatment records also reflect that during service in August 1989 the Veteran injured the left knee after being thrown from a motorcycle due to skidding out on some dirt. While service treatment records do not mention treatment for neck pain, at the October 2020 virtual Board hearing, the Veteran credibly testified to having neck pain/stiffness following the in-service motor vehicle accident. Further, the Veteran credibly testified that he did not mention the neck pain at the time of the accident because he was much more concerned with the serious laceration on the left knee. Neck pain/injury is consistent with being thrown from a motorcycle. Review of the service treatment records also reflect that, subsequent to the in-service motor vehicle accident, the Veteran sought treatment for neck pain during service in the 1990s and early 2000s. As will be discussed in further detail below, VA received a May 2017 private opinion letter in which a private physician opined that it is equally likely that either the pre-service or in-service motor vehicle accidents caused the currently diagnosed cervical spine disorders; therefore, when considering the above, the Board finds the evidence at least in equipoise on the question of whether a currently diagnosed cervical spine disorder pre-existed service. As the evidence is at least in equipoise, the Board will treat the instant matter as one of direct service connection, as that is of greater benefit to the Veteran. Further, the Board will not discuss the aggravation evidence developed during the course of this appeal, as it is not relevant to the question of direct service connection. Having found the instant matter to be one of direct service connection, the Board notes that, per the report from an October 2014 VA cervical spine examination, the diagnoses are cervical disc disease and cervical spondylosis. Further, as discussed above, the Board also finds that during service the Veteran injured the neck in an in-service motor vehicle accident (skidding out and being thrown from a motorcycle) and subsequently sought treatment for neck pain on multiple occasions. Finally, having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the currently diagnosed cervical disc disease and cervical spondylosis are due to the in-service motor vehicle accident and subsequent neck pain treatment. The Veteran received a VA general medical examination in May 2009. At that time, X-rays taken of the cervical spine were negative; however, considering the nature of the neck disorder and the fact that degenerative changes were noted in a 2012 MRI, the private examiner in May 2017 opined that, had an MRI been conducted at the time of the May 2009 VA general medical examination, the VA examiner would have noted degenerative changes in the cervical spine at that time. The Veteran received a VA cervical spine examination and opinion in October 2014. Per the opinion report, the VA examiner reviewed the Veteran’s service treatment records, although the Board admits it is unclear as to whether the VA examiner realized that there were motor vehicle accidents both during and prior to service. At the conclusion of the examination the VA examiner opined that it was at least as likely as not that the currently diagnosed cervical spine disorders were related to service, as the neck disorders were consistent with the types of impact injuries caused by a motor vehicle accident. Further, the VA examiner found nothing in the record supported that the cervical spine disorders manifested after service. VA received an addendum private opinion letter from a private physician in May 2017. The addendum opinion was necessitated by the fact that when the private physician had previously submitted an opinion, the private physician was unaware of the Veteran’s in-service motor vehicle accident. The private examiner explained that the currently diagnosed cervical spine disorders were likely caused by a motor vehicle accident because motor vehicle accidents are known to cause multilevel cervical degenerative changes. The private physician also discussed the October 2014 VA medical opinion in which a VA examiner opined that the currently diagnosed cervical spine disorders were related to one or more in-service motor vehicle accidents. Further, as discussed above, the private physician opined that, had a MRI been performed at the time of the May 2009 VA general medical examination, due to the severity of the Veteran’s cervical spine disorder, the MRI likely would have shown degenerative changes at that time. As to the question of which motor vehicle accident caused the currently diagnosed cervical spine disorders, the private physician opined that the in-service motorcycle accident was equally as likely to be the cause of the cervical spine disorders as the pre service motor vehicle accident. As the evidence is at least in equipoise as to whether the in-service accident or pre-service accident caused the currently diagnosed spinal disorders, the Board will resolve reasonable doubt in favor of the Veteran to find that the in-service motor vehicle accident caused the currently diagnosed cervical spine disorders. In sum, the evidence reflects that during service the Veteran was involved in a motor vehicle accident. Specifically, the Veteran was thrown from a motorcycle and injured the neck after skidding out on some dirt. Both VA and private physicians have opined that currently diagnosed cervical spine disorders are due to a motor vehicle accident, and the evidence supports that either the in-service or pre service motor vehicle accident could have caused the disorders. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for the cervical spine disorders of cervical disc disease and cervical spondylosis have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 3. Service Connection for a Headache Disorder The Veteran received VA cervical spine and headache examinations in October 2014. Per the examination reports, the diagnosis was tension type headaches directly associated with cervicalgia and cervical myalgia. Further, at the conclusion of the examinations the VA examiner opined that the occipital tension type headaches were caused by the now service-connected cervical degeneration. Further, per the report from the May 2017 private opinion letter, the private physician opined that the Veteran’s headaches were due to the cervical spine degeneration. In sum, both a VA and private examiner have found that the Veteran’s currently diagnosed headaches are a symptom of the now service-connected cervical spine disorders. For these reasons, the Board finds that the criteria for service connection for tension type headaches, as secondary to now service-connected cervical spine disorders of cervical disc disease and cervical spondylosis (38 C.F.R. § 3.310), on a causation basis, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.