Citation Nr: 21068078 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-28 112 DATE: November 9, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc and joint disease is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's neck disability is related to service. CONCLUSION OF LAW The criteria for service connection for cervical spine degenerative disc and joint disease have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military service from August 1973 to August 1977. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and May 2021, the Board remanded the matter for further evidentiary development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Neck In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, a September 2019 VA examination report shows a diagnosis of cervical spine degenerative disease. Thus, the first element of service connection has been met. The Veteran's service treatment records (STRs) do not show complaints, treatment, or diagnosis of a neck condition. An October 2013 VA clinical record indicates the Veteran's neck problems started in the military. In a July 2014 statement, the Veteran reported that at Ford Ord in 1973, he was blindsided by a young man when he bent over to tie his shoe and was slammed to the floor. When the man landed on the Veteran's back, his face was smashed into his chest, and he was belly down. The Veteran noted that the vertebra in his neck spread as far as one can spread their fingers. He further noted that his neck symptoms of burning, that also caused left arm tingling and numbness has continued to this day. In an August 2015 statement, the Veteran reiterates that he injured his neck at Fort Ord in 1973. Here, the competent and credible lay statements from the Veteran demonstrates he exhibited symptoms during service. This is sufficient to meet the second element of service connection. In a September 2019 VA examination report, the examiner opined that the Veteran's neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that he found no documentation in the STRs reporting a neck or cervical spine condition, and documentation related to a neck condition is not noted until 1990. In a May 2021 VA medical opinion, the examiner opined that it is less likely than not the Veteran's neck condition has its origin in events of medical service. The examiner explained that there is no credible evidence supporting symptoms originating in service, and a conclusion that the Veteran's statements are not credible. The examiner indicated that the Veteran's post-service motorcycle accident with closed head trauma after flying 31 feet through the air after impact is much more likely the cause of neck-related complaints, than being knocked to the ground while tying his shoe. In this case, the Board finds the September 2019 and May 2021 VA opinions that the Veteran's neck disability is not related to service are of minimal probative value. Indeed, the examiners failed to consider competent and credible evidence of the Veteran's report of the onset of his neck symptoms in service, and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence). The Board could remand the claim for another medical opinion, however, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The current diagnosis and the competent and credible lay statements of neck symptoms in and since service are sufficient to establish that the Veteran's neck disability is related to service. For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's neck disability is related to service. Thus, resolving reasonable doubt in the Veteran's favor, service connection is warranted for cervical spine degenerative disc and joint disease. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.