Citation Nr: 21063304
Decision Date: 10/13/21	Archive Date: 10/13/21

DOCKET NO. 17-48 170A
DATE: October 13, 2021

ORDER

Entitlement to service connection for a neck disorder is granted.

FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, his neck disorder had its onset in service.

CONCLUSION OF LAW

The criteria to establish service connection for a neck disorder have been met.  38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 2009 to August 2006 with additional Reserve service. 

 

Service Connection

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303 (b).

Service connection may also be granted for any disease initially 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).

Entitlement to service connection for a neck disorder

The Veteran asserts that he is entitled to service connection for a neck disorder because it originated during service after a motor vehicle accident. 

The evidence reflects that the Veteran was first diagnosed with a cervical sprain in October 2003 after a motor vehicle accident while in service.  Accordingly, the first element necessary to establish service connection has been demonstrated. 

Concerning the second element to establish service connection, the Board observes the credible statements the Veteran has made to the VA and to his medical providers regarding symptoms of neck pain since the incident.  Based on this evidence, the Board concludes that the second element has been demonstrated.

Regarding the third element, a lack of a medical nexus is not fatal to the Veteran's claim because service connection may be established for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, to include evidence showing continuity of symptoms during and after service.  38 C.F.R. § 3.303 (d).  As such, the Board acknowledges the negative evidence including the negative opinions of the 2019 and 2016 VA examiners.  However, these opinions are found less probative as neither examiner mentions the Veteran's cervical sprain diagnosis in October 2003, but only refers to the medical imaging taken in November 2003, a month after the accident. 

Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a neck disorder is warranted.  38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Billinger, Associate Counsel