Citation Nr: 21063692 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-33 084 DATE: October 15, 2021 ORDER Service connection for a cervical spine disorder, to include as due to a service-connected disability, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's cervical spine disorder is aggravated by his service-connected disabilities, to include his left knee disorder and bilateral lower extremity radiculopathy. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder as secondary to service-connected disabilities have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1995 to April 1998. In a decision issued in September 2019, the Board, in pertinent part, denied entitlement to service connection for a cervical spine disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an Order that vacated the Board's September 2019 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in an August 2020 Joint Motion for Partial Remand (JMPR) by the parties. Thereafter, in March 2021, the Board remanded the current claim for additional development. The Board acknowledges that additional VA treatment records were received after the most recent May 2021 Supplemental Statement of the Case (SSOC). As the Board is awarding a full grant of the claim for service connection for a cervical spine disorder, there is no prejudice in proceeding with adjudication of that claim. The Board also acknowledges that the Veteran has submitted a timely October 2020 VA Form 10182, Notice of Disagreement (NOD), to the September 2020 denial to readjudicate the claim for service connection for a right knee disorder. This appeal has been assigned a separate docket number and will be addressed in a separate decision consistent with the Appeals Modernization Act (AMA) framework. Entitlement to service connection for a cervical spine disorder to include as secondary to a service-connected disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). There are three requirements to establish service connection: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3. 310(a). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998); Allen, 7 Vet. App. at. 448. Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The record establishes that the Veteran has a current diagnosis for a cervical spine disorder, and he has multiple service-connected disabilities to include a left knee disorder and bilateral lower extremity radiculopathy. Such evidence is sufficient to meet the first and second elements for establishing secondary service connection. See 38 C.F.R. § 3.310(a). The remaining issue for consideration is whether a nexus exists between the Veteran's cervical spine disorder and his service-connected disabilities. In that regard, the Board finds that the evidence is at least in equipoise as to whether a nexus exists. In April 2021, the Veteran underwent a VA examination to evaluate the etiology of his cervical spine disorder. The examiner diagnosed cervical spine degenerative arthritis. The examiner indicated that, although he was unable to determine the baseline level of severity prior to aggravation, it was at least as likely as not that the Veteran's cervical spine disorder was aggravated beyond its natural progression by his service-connected conditions. The examiner explained that the Veteran's neck pain was getting worse, and he had cervical fusion surgery in 2018 and 2019 and was going to have a third surgery for the cervical spine. The examiner indicated that the fact that the Veteran required a third surgery was evidence of aggravation beyond the natural course of the condition. The Board finds the April 2021 VA medical opinion to be highly probative as it was based on examination of the Veteran and review of the Veteran's claims file, to include relevant diagnostic imaging reports, and it was supported by an adequate rationale. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). Notably, the VA examiner's opinion is consistent with VA treatment records that reflect the Veteran has had falls due to lower extremity problems and he appears to have developed additional neck pain and cervicalgia as a result. See July 2018 VA Treatment records. The Board notes that the RO continued the denial of the Veteran's claim determining that it could not be conceded that a nonservice connected disability was aggravated by a service-connected disability unless the baseline severity of the nonservice-connected disability or injury was established by medical evidence created before the onset of aggravation and, here, a baseline severity of the Veteran's cervical spine disorder could not be established. In this case, however, the Board disagrees. Chiefly, the Veteran's claims file contains several VA examinations and treatment records that are available from which a determination can be made as to the baseline level severity. Moreover, although the examiner checked the box "no" as to whether a baseline level of severity could be determined, the examiner also stated that the fact that the Veteran required a third surgery was evidence of aggravation. 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established. However, that regulation also states that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, it finds that 38 C.F.R. § 3.310(b) permits the Board to determine whether secondary service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. See also Ward v. Wilkie, 31 Vet. App. 233 (2019). In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's cervical spine disorder is aggravated by his service-connected disabilities, to include his left knee disorder and bilateral lower extremity radiculopathy. Accordingly, the Board will resolve all reasonable doubt in favor of the Veteran and find that secondary service connection is warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.