Citation Nr: 21070579 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-47 514 DATE: November 24, 2021 ORDER Service connection for cervical degenerative disc disease is granted. FINDING OF FACT The Veteran's cervical degenerative disc disease is related to his vehicle hitting improvised explosive device (IED). CONCLUSION OF LAW The criteria for service connection for cervical degenerative disc disease have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from January 2001 to May 2004, including service in Iraq and Kuwait. This matter is on appeal from an April 2015 rating decision. In a June 2019 decision, the Board denied service connection for a neck disorder. The Veteran appealed the Board's December 2012 decision to the United States Court of Appeals for Veterans Claims (Court), which in an October 2020 order, granted the parties' joint motions for remand (JMR), vacating the Board's June 2019 decision and remanding the claim for compliance with the terms of the JMR. In March 2021, the Board remanded the Veteran's claim. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 44748. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 51214 (1998). 1. Service connection for cervical degenerative disc disease The Veteran argues that he injured his neck when a vehicle in which he was a passenger hit an improvised explosive device (IED). He further states that this is the same explosion that caused the tinnitus disorder for which he has been awarded service connection. The first element of service connection is met, in that the June 2021 VA neck examination indicates a current diagnosis of cervical degenerative disc disease. The second element of service connection is met, in that the Veteran states that he injured his neck when a vehicle in which he was riding hit an IED. There is no basis to question the Veteran's credibility. Consistent with this testimony, in a February 2004 report of medical history, the Veteran ascribes tinnitus to a "deployment injury." The third element is also met, in that the most probative medical opinion of record indicates that there is a nexus between the Veteran's neck disorder and service. A July 2014 private medical opinion concludes that the Veteran's neck disorder is related to service. The examiner notes that the Veteran has experienced tinnitus since service, which the Veteran ascribes to in-service IED explosions. The Veteran's tinnitus did not respond to conventional methods. The examiner describes treating the Veteran with diagnostic cervical spine injections, on the basis that "tinnitus may be caused by cervical spine instability-related nerve root irritation ...." Following this treatment, the Veteran "reported the tinnitus in the left ear subsided completely," although the right-ear tinnitus "remained unchanged." In light of these findings, the examiner concludes that "the cause of the tinnitus is cervical spine origin" and "the explosion caused the cervical spine injury leading to chronic cervical spine instability and nerve irritation[,] resulting in tinnitus." This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). In the October 2020 joint motion for remand, the parties determined that the Board erred in relying on the July 2017 VA negative nexus opinion to deny the Veteran's claim. Specifically, this opinion was inadequate, in that it relied on the absence of evidence of in-service IED exposure without addressing the Veteran's lay statements. A July 2021 VA medical opinion concludes that the Veteran's neck disorder is less likely than not related to service, the rationale being that "[t]here is no evidence of neck pain in the service ...." An August 2021 VA medical opinion also concludes that the Veteran's neck disorder is less likely than not related to service, the rationale being that "[t]he Veterans STRs do not indicate any objective evidence of exposure to an IED blast." The conclusion of a medical opinion cannot be premised on the lack of evidence in service treatment records while ignoring lay statements regarding symptomology. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). For this reason, the July 2021 and August 2021 VA medical opinions are inadequate. It follows that the only probative medical opinion of record supports the existence of a nexus between the Veteran's neck disorder and service. As the three elements are met, service connection for cervical degenerative disc disease is warranted and the Veteran's claim is granted. The Board notes, as the VA examiners have, that there is no contemporaneous medical evidence of neck problems or IED exposure during service. Further, the Veteran never received any combat awards that definitively indicate armed combat. However, the Veteran's MOS with counterintelligence would likely require transportation in Iraq, and given the nature of war in Southeast Asia, it is not unreasonable to assume that IED exposure resulting in no immediate physical injury would go unreported in-service treatment records. Further, the only probative medical opinion record offers the only potential etiology of the Veteran's neck disorder, and the fact that his private doctor proved her hypothesis with direct experimentation is highly probative. For these reasons, and in light of the fact that there is no reason to question the Veteran's credibility, the Board finds that for this Veteran the absence of contemporaneous service treatment records supporting the existence of in-service IED exposure or neck problems does not by itself weigh against service connection for cervical degenerative disc disease. In reaching this conclusion, the Board has considered the July 2021 and August 2021 VA medical opinions concluding that the Veteran's neck disorder is less likely than not related to tinnitus. A July 2021 VA medical opinion concludes that the Veteran's neck disorder is less likely than aggravated by tinnitus, the rationale being that "[t]innitus does not cause any pathology of the cervical vertebrae of the spine." But the examiner provides no basis to support this opinion. A July 2021 VA medical opinion concludes that the Veteran's neck disorder is less likely than not proximately due to or the result of tinnitus, but the examiner provides no rationale for this conclusion. An August 2021 VA medical opinion also concludes that the Veteran's neck disorder is less likely than not proximately due to or the result of tinnitus. In support, the examiner cites studies describing the cause and symptoms of tinnitus. She does not specifically address whether tinnitus caused the Veteran's neck disorder. The Board finds these opinions to be inadequate, in that none is supported by sufficient rationale. However, even if supported by a rationale, they would not weigh against service connection for cervical degenerative disc disease on a direct basis. For these reasons, service connection for cervical degenerative disc disease is warranted and the Veteran's claim is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.