Citation Nr: 21073510
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 17-18 781
DATE: December 8, 2021

ORDER

Entitlement to service connection for a cervical spine strain is granted.

FINDING OF FACT

The Veteran's cervical spine strain is related to her active-duty service to include carrying heavy gear for long periods of time.

CONCLUSION OF LAW

The criteria for service connection for a cervical spine strain are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 2004 to August 2004, December 2004 to June 2005, March 2006 to April 2006, in April 2004, and May 2007 to October 2007. She was deployed to Afghanistan in an imminent danger pay area.

This matter is before the Board of Veteran's appeals on appeal from an October 2015 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). 

In February 2019, the Board remanded entitlement to service connection for a right wrist condition, left hip condition, right leg condition, left ankle condition, posttraumatic stress disorder (PTSD), and a cervical spine condition. The RO granted service connection for all conditions other than entitlement to service connection for PTSD and her cervical spine condition which were then returned to the Board. In March 2021, the Board remanded entitlement to service connection for a cervical spine strain and entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder. While on remand, in August 2021, the RO granted service connection for an acquired psychiatric disorder. This is considered a full grant of benefits sought on appeal and as a result the only issue currently before the Board is entitlement to service connection for a cervical spine strain. 

As explained in the February 2019 Board decision, new and material evidence is not required to reopen a previously denied cervical spine claim, because it is being reconsidered on a de novo basis under 38 C.F.R. § 3.156(c)(1). 

Service Connection

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active-duty service, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.

Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

1. Entitlement to service connection for a cervical spine strain. 

The Veteran asserts her current cervical spine condition began in service as a result of her duties as a gunner. Specifically, the Veteran asserts that while deployed in Afghanistan, she was working as a gunner four to five days a week which required her to carry over 25 pounds of equipment in addition to her standard gear. She was responsible for mounting the equipment to the Humvee, firing the "M249," and riding "in the turret as the Humvee [drove] over bumpy roads" while only being held in by a sling strap seat that did not have any neck or back support. See Lay Statement, August 2021.

As an initial matter, the Veteran's claim succeeds based on the theory of direct service connection. As a result, no additional theories of service connection will be discussed in this decision.  

The Veteran was diagnosed with a cervical spine strain during an August 2015 VA examination. This diagnosis was confirmed again during an October 2019 VA examination and a July 2021 VA examination. The first element of service connection, a current disability, has been met. 

The Veteran's military personnel records show she was deployed to Afghanistan from January 2005 to May 2005 in a hostile fire and imminent danger area. Her records indicate that her primary specialty was in food service. However, the Veteran's post deployment examination from March 2005, prior to her return from deployment, shows the Veteran's combat specialty as "force protection." The Veteran was also given The Army Commendation Medal for her "exceptionally meritorious service as a compound force protection team member" in Kabul, Afghanistan. The Veteran has consistently asserted that her duties as a member of force protection while deployed in Afghanistan included carrying heavy equipment for long periods of time despite her petite stature for the entirety of the appeal period. As the Veteran's military personnel records indicate she was a member of force protection while deployed in 2005, the second element of service connection has been met. 

The question remaining before the Board is whether the Veteran's cervical spine condition is a result of her duties as a force protection team member while deployed in 2005.

The Veteran's January 2004 pre-deployment medical examination does not note any issues regarding the Veteran's back nor neck. In her March 2015 post deployment health assessment, the Veteran reported swollen, stiff, and painful joints, back pain, and muscle aches. Notably, neck pain was not one of the pre-populated symptoms she could choose on this report. Additionally, her May 2005 post deployment medical assessment shows she reported neck and back pain. She stated her back pain was a result of "wearing armor, packs, etc."

The Veteran underwent a VA examination in August 2015 in which the examiner found her cervical spine condition was not a result of her active-duty service. The sole rationale provided by the examiner was due to a lack of contemporaneous medical records showing she was treated for a neck condition in service. The August 2015 examiner also failed to consider the Veteran's lay statements regarding the onset of her cervical spine symptoms in relation to her 2005 deployment duties as a member of the force protection. As stated in the February 2019 Board decision, as the examiner exclusively relied on the lack of inservice documentation as the basis for his negative nexus opinion, this examination is inadequate for VA rating purposes and afforded no probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The Veteran also underwent a VA examination in October 2019 in which the examiner cited to a lack of medical evidence in service showing treatment for a cervical spine condition as the basis to proving a negative nexus opinion. The October 2019 VA examiner also failed to consider the Veteran's lay assertions and instead relied solely on the lack of in-service documentation. As a result, the October 2019 VA examination is also inadequate for VA rating purposes and is afforded no probative weight. Id. 

The Veteran underwent a third VA examination in July 2021 where again the examiner concluded the Veteran's cervical spine condition was not a result of her active-duty service. The examiner here stated that as there was no medical evidence of a treatment for nor symptoms of a neck injury in service or until 2015. As a result, there was no evidence of chronicity of care nor evidence the Veteran's cervical spine condition was related to service. However, the July 2021 examiner also did not consider the Veteran's lay assertions regarding the onset of her cervical spine condition and instead relied solely on the lack of medical documentation for the basis of his negative nexus opinion. Furthermore, the examiner stated there were no notations of cervical spine issues prior to 2015. This is an incorrect summation of the facts as present by the record since the Veteran reported neck pain post deployment in May 2005. As a result, the July 2021 VA examination is also found to be inadequate for VA rating purposes and afforded no probative weight in this matter. Id.; Reonal v. Brown, 5 Vet. App. 458, 461 (1993). 

The July 2021 VA examiner also indicated that the Veteran's cervical spine condition was not a result of any of her service-connected disabilities nor was the pre-existing neck injury aggravated by service. The record does not reflect nor does the Veteran assert her neck condition is a result of her service-connected disabilities. Additionally, there is no evidence of record to show the Veteran's cervical spine condition pre-existed her active-duty service in 2005. As a result, these opinions are afforded no probative value in this matter has they do not speak directly to the issue of entitlement to service connection for a cervical spine condition as raised by the Veteran and the record. 

In September 2021, the Veteran submitted an independent medical evaluation report from Dr. L, M.D., a board-certified family physician. The Veteran waived consideration by the RO for this evidence. Dr. L stated that the Veteran was being examined in person after a review of the Veteran's entire record. The Veteran reported experiencing neck pain in service as a result of carrying an excessive amount of weigh on a daily basis. Dr. L performed full range of motion testing on the Veteran's cervical spine, noting that her condition did not pre-exist service. Dr. L stated that the Veteran's "neck condition is connected to her service..." as the Veteran continually reports the onset of her condition to be in service and the terms of her service are consistent with this type of injury. Dr. L cited to a Military Medicine article for additional support showing female service members "were reported to have higher rates of injury incidence than men. Women reported more injuries due to physical training." Dr. L further noted the article stated:

[H]eavy gear/lifting was identified as the second most frequent cause of [musculoskeletal injuries] in a study of over 3,000 deployed service members. A second study on over 15,000 deployed service members found similar results with heavy loads leading to 14% of injuries. In this study, the relative risk of [musculoskeletal injuries] increased 144% when the average load was greater than 30 lbs. in women.

Dr. L stated that the Veteran consistently detailed having to lift and carry "a load greater than 30 pounds" while deployed. Dr. L concluded by stating that for those reasons it is, "reasonable and as likely as not that the neck pain that [the Veteran] experienced beginning in the service progressed over the years and is the cause of her ongoing neck pain...." 

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The only competent medical evidence of record is the September 2021 independent medical evaluation report indicating the Veteran's current cervical spine condition is a result of her active-duty service. As a result, the preponderance of the evidence supports a finding that the Veteran's cervical spine condition is a direct result of her active-duty service as a member of the force protection. The claim is granted.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Associate Counsel, S. Conti

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.