Citation Nr: 21062552 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-10 600 DATE: October 7, 2021 ORDER Service connection for cervical degenerative disk disease (DDD) and stenosis is granted. FINDINGS OF FACT The Veteran's cervical disability had its onset during the Veteran's combat service in service. CONCLUSIONS OF LAW The criteria for service connection for a cervical condition have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1967 to March 1969, including combat service in the Republic of Vietnam and his decorations include the Purple Heart medal with Oak Leaf Cluster, Bronze Star Medal with "V" device with Oak Leaf Cluster and Combat Infantryman Badge. The record shows that the Veteran in his March 2019 VA Form- 9 and March 2021 written argument the Veteran's representative, the Disabled American Veterans, reiterated that the Veteran sought to testify at a Board hearing. Here, however, the Board finds that a hearing is not necessary for the adjudication of this case since the record shows that service connection for the Veteran's degenerative disc disease of the cervical spine is warranted. As such, the Board will not delay the adjudication of the Veteran's appeal. Service Connection Cervical condition The Veteran seeks service connection for his cervical condition. In support, the Veteran reported that his neck problems began in service after an injury suffered by an explosion in Vietnam and have continued thereafter. Indeed, the record confirms the Veteran's reports. See STR (March 1969). In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). 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. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran served in combat and his service records shows that he suffered a neck injury while serving in Vietnam after an explosion and such exposure is consistent with the circumstances, conditions and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service injury. In addition, the medical evidence shows that the Veteran has been diagnosed as having cervical DDD and stenosis and he reports the onset of the condition during combat service in Vietnam. Further, the Board finds that he is both competent to report observing neck problems during and since serving in combat in Vietnam and that his account of having neck problems since that time is credible. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his cervical condition became manifest during his combat service. See Reeves. In light of his in-service, combat-related cervical trauma, the credible history of his cervical problems in and since service, and the diagnosis of cervical DDD and stenosis, the Board finds that service connection for cervical DDD and stenosis is warranted because the disability had its onset in service. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.