Citation Nr: 21075156 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-31 738A DATE: December 17, 2021 ORDER Service connection is granted for cervical spine strain and tiny disc protrusions at C4-C5 and C5-C6 that result in minimal spinal canal narrowing. FINDING OF FACT Resolving doubt in the Veteran's favor, the cervical spine disability began during service and is related to service. CONCLUSION OF LAW The criteria have been met for service connection for cervical spine strain and tiny disc protrusions at C4-C5 and C5-C6 that result in minimal spinal canal narrowing. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active-duty September 2002 to September 2005, May 2007 to March 2008, and May 2009 to August 2012. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Considering the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim decided herein are moot. Service Connection Legal Criteria Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Factual Background In March 2012, the Veteran filed a claim of service connection for upper back pain. In a February 2015 statement the Veteran explained his back pain began along with his left shoulder pain in service after deployment and has gotten worse since that time. Analysis First, the Board finds there is a current disability. A September 2013 VA MRI diagnosed tiny disc protrusions at C4-C5and C5-C6 that result in minimal spinal canal narrowing. The September 2021 VA examination showed a diagnosis of cervical strain. The Board notes the June 2018 VA examination indicated degenerative arthritis of the cervical spine. However, the examiner did not take x-rays but included the September 2013 MRI findings in the report. Accordingly, the first element has been met. Second, the Board finds there was an in-service injury and disease. In his February 2008 post-deployment questionnaire, the Veteran reported back pain during deployment and currently. In his February 2008 report of medical assessment, the Veteran stated his back pain was worse. In September 2011 and January 2012 service treatment records (STRs), the Veteran complained his left shoulder pain radiated to his neck. In an April 2011 STR the Veteran complained of neck and shoulder pain. The STR noted positive neck symptoms. The January 2012 STR assessed upper back pain to be treated as a muscle spasm. In February 2012 the Veteran's upper back pain was listed as a chronic condition. The STR make clear the Veteran's upper back pain began after his 2008 deployment. In an October 2011 STR, the Veteran was diagnosed with myofascial pain syndrome. Accordingly, there was an in-service injury and disease. Lastly, the Board finds the most probative evidence of record shows the cervical spine disability is related to the upper back pain and myofascial pain syndrome during service. The Veteran received a May 2012 VA spine examination. The examiner determined there was no current disability. In August 2014 the Veteran received a VA shoulder examination. The examiner noted the Veteran described an increase in his back pain and stated, "this most likely is caused by the increase in shoulder pain he is experiencing, particularly in light of the location." The Veteran provided a November 2014 private opinion. The private provider opined the upper back pain was as likely as not due to the consequences of the Veteran's military service. The private provider explained myofascial pain syndrome was a chronic disorder and can cause pain in seemingly unrelated parts of the body. The private provider stated it typically occurs after a muscle has been contracted repeatedly, like repetitive motions used in jobs. The provider stated, "Pain in the shoulder girdle and the arm is often referred pain from a remote trigger point, i.e., the myofascial pain syndrome. Once initiated, this definite disease entity perpetuates itself through various feedback loops. The shoulder girdle attaches by large muscles to the scapula (the shoulder blade) the back of the thoracic rib cage. These large upper back muscles are prone to developing irritation (myofascial pain) that can be painful and difficult to work out." The Veteran received a June 2018 Gulf War illness examination. The examiner stated the Veteran had arthritis of the lower cervical spine to explain upper back symptoms. As noted above, there was no evidence to confirm arthritis and the examiner did not elaborate. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran received additional VA examinations in November 2019, December 2020, and September 2021. The November 2019 and December 2020 VA examinations determined there was no current disability and refused to address the relevant evidence of record. Notably, private treatment records showed cervical weakness in March 2019. The Board affords the opinions no probative weight. The September 2021 VA examination provided a diagnosis of cervical strain and opined it was less likely than not incurred in or caused by service. The examiner stated, [A]fter reviewing the Veteran's service records, PE and the Veteran's statements, there is no evidence that the veteran's claimed veterans neck condition was as a result of military service. The veteran states he is not sure why his neck hurts, he denies and trauma or injury. There is imaging, a MRI which was normal in 9/2013 and a X-ray 4/2013 normal as well. Therefore, the claimed condition was less likely than not caused by an in-service injury. The Board affords no probative weight to the September 2019 VA opinion. First, the examiner states there was no evidence after reviewing STRs. There are several complaints of back and neck pain during service, as described above. Second, the Veteran's statement about him being unsure about why his neck hurts is not relevant. The examiner is required to provide the etiology, not the Veteran. The Veteran is only qualified to report what he has observed or experienced. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Lastly, the examiner misrepresents the September MRI. The MRI says the findings were normal except for tiny disc protrusions at C4-C5 and C5-C6 that result in minimal spinal canal narrowing. Accordingly, the opinion is based on an inaccurate factual premise. The Board affords significant weight to the November 2014 private opinion. First, the private provider noted the reviewed the Veteran's file and the Veteran's statements regarding his upper back pain. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Second, the private provider explained the nature of the disease during service and how that can exacerbate upper back pain. The Board notes the private provider did not mention the September 2013 MRI. However, the claim file documents regular complaints of upper back pain from February 2008 during service to the present. Notably, the September 2013 MRI was a year and one month after the Veteran was discharged from service. See Sellers v. Shinseki, 25 Vet. App. 265, 285 (2012) ("there is no requirement that a veteran be diagnosed in service for a disease to be service connected.") (emphasis added). Lastly, the November 2014 opinion is consistent with the course of treatment in the Veteran's STRs. Resolving doubt in the Veteran's favor, the Board finds the most probative evidence of record shows the cervical spine disability began during service and is related to service. Service connection for cervical spine strain and tiny disc protrusions at C4-C5 and C5-C6 that result in minimal spinal canal narrowing is granted. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.