Citation Nr: 21068975 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-30 569 DATE: November 17, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a right hip disability is granted. Entitlement to service connection for a left hip disability is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his cervical spine disability manifested within one year following separation from active service. 2. Resolving all reasonable doubt in the Veteran's favor, his right hip disability manifested during or within one year following separation from active service. 3. Resolving all reasonable doubt in favor of the Veteran, his left hip disability manifested during or within one year following separation from active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1986 to July 1992 and the United States Air Force from July 1997 to August 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. In determining entitlement to service connection, the claimant receives the benefit of the doubt so that the claimant prevails whenever the evidence in support of the claim is at least in equipoise. 38 C.F.R. § 3.102; 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). 1. Entitlement to service connection for a cervical spine disability The Veteran seeks entitlement to service connection for a cervical spine disability, which he contends manifested during service and has continued ever since. Service treatment records do not show complaints of, treatment for, or a diagnosis of a neck disability. However, military personnel records (MPRs), to include the Veteran's DD 214, show that he served as a Navy SEAL. In a September 2014 VA treatment record, the Veteran stated that he has had neck pain for two to three years and had undergone physical therapy for his condition with little relief. X-rays revealed an impression of degenerative changes. After an October 2014 MRI, the Veteran was diagnosed with mild degenerative cervical spondylosis, or osteoarthritis. The Veteran testified in his August 2021 hearing that his neck pain began during his second period of active duty service, in approximately 2010 or 2011, while serving in Iraq where he was wearing Kevlar all day. He further testified that around this time he began to observe that his neck was clicking and couldn't turn his neck all the way to the right. He stated that more generally, his training and daily workout routine, especially during his time serving as a Navy SEAL, was very intense and over time took a toll on his body, including his neck. The Veteran did not want to interfere with his retirement, so he did not seek medical attention; instead, the Veteran treated himself with over-the-counter medication, ice, and massages, but that he has continued to experience pain in his neck since service. Furthermore, a July 2021 lay statement submitted on the Veteran's behalf by his ex-wife indicates that when the two reconnected in March 2009, he was experiencing pain in his neck. She stated that she would often observe him limiting motion in his neck and that this pain and discomfort had a pronounced negative impact on his everyday life and his ability to engage in physical activity. The question before the Board is whether the Veteran's currently diagnosed cervical spine disability is etiologically related to active duty service. Based on a careful review of all the subjective and clinical evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a cervical spine disability is warranted. In this regard, the Veteran was discharged from service in August 2011 and three years later was diagnosed with degenerative changes of the cervical spine. Significantly, at that time he was diagnosed with degenerative changes of the cervical spine, the Veteran reported having ongoing symptoms for at least three years, which would be around August 2011. Such statement while seeking treatment for his cervical spine disability is consistent with the onset and continuity of symptoms since his active service and discharge shortly thereafter. The Veteran's statement to his VA provider, during the course of seeking treatment, is found credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). Thus, the Veteran's credible reports of continuous neck pain since his service is probative evidence in support of his claim. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). Thus, the Board finds the lay and medical evidence indicate that the Veteran's cervical spine disability was at least as likely as not manifested during the year following active service. Accordingly, and resolving reasonable doubt in the Veteran's favor, his claim for service connection for a cervical spine disability is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a left hip disability As an initial matter, as the facts and analysis are the same for both of these claims, the Board will address them together for the purposes of brevity. The Veteran seeks entitlement to service connection for a right hip and left hip disability, which he contends first manifested during service and has continued ever since service. Service treatment records do not show complaints of, treatment for, or a diagnosis of a right or left hip disability. However, military personnel records (MPRs), to include the Veteran's DD 214, show that he served as a Navy SEAL. In a February 2014 treatment note from private orthopedic physician Dr. T.M.D., the private physician noted that the Veteran reported experiencing hip pain for the last four or five years. The private physician observed reduced range of motion in both hips and performed x-rays that showed degenerative changes in both hips and the Veteran was diagnosed with bilateral hip osteoarthritis. The Veteran testified during his August 2021 hearing that he has had hip pain that began in approximately 2009 while on active duty. He described that while in service his right hip would frequently lock, and his left hip would occasionally give out and cause him to stumble. He further testified that carrying machine guns and other heavy combat equipment, frequent runs, and weightlifting that caused strain on his hips. The Veteran further described that during his two periods of active service he was surrounded by fellow Navy SEALs and Marines and felt pressure to measure up to the health and fitness standards of his peers despite the hip pain he was experiencing. The Veteran did not want to interfere with his retirement, so he did not seek medical attention for his hip conditions; instead, the Veteran treated himself with over-the-counter medication. Moreover, in the July 2021 lay statement noted above, the Veteran's ex-wife indicates that when the two reconnected in March 2009 the Veteran also had pain and difficulties with his hips. She stated that his hips would often lock up and cause him intense pain and discomfort and that his hip pain intensified over the years and impacted his ability to do things like yardwork, chores around the house, putting on his socks, getting adequate sleep, or engaging in regular physical activity. The question before the Board is whether the Veteran's currently diagnosed bilateral hip osteoarthritis is etiologically related to active duty service. Based on a careful review of all the subjective and clinical evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a left and right hip disability is warranted. In this regard, the Veteran was discharged from service in August 2011 and less than 3 years later was diagnosed with bilateral hip osteoarthritis. Significantly, at that time he was diagnosed with bilateral hip osteoarthritis, the Veteran reported having ongoing symptoms for the last four to five years, dating the onset to around February 2010. Such statement while seeking treatment for his bilateral hip disability is consistent with the onset and continuity of symptoms since his active service and discharge thereafter. The Veteran's statement to his VA provider, during the course of seeking treatment, is found credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). Thus, the Veteran's credible reports of continuous bilateral hip pain beginning in and continuing since his service is probative evidence in support of his claims. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). Thus, the Board finds the lay and medical evidence indicate that the Veteran's right and left hip disabilities were at least as likely as not manifested during service or the year following active service. Accordingly, and resolving reasonable doubt in the Veteran's favor, his claims for service connection for right and left hips disabilities are granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.