Citation Nr: 21076581 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-16 503 DATE: December 27, 2021 ORDER Service connection for degenerative disc disease of the cervical spine is granted. Service connection for headaches, secondary to degenerative disc disease of the cervical spine, is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his degenerative disc disease of the cervical spine is related to his military service. 2. Resolving all doubt in the Veteran's favor, his headaches are caused by his degenerative disc disease of the cervical spine. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the cervical spine have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for headaches, as secondary to degenerative disc disease of the cervical spine, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1987 to February 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In January 2021, the Veteran testified at a hearing before the undersigned. A transcript of that hearing has been associated with the record. At the outset, the Board notes that the Veteran filed his initial claims in October 2011. These claims were denied on the merits in an August 2012 rating decision which found no nexus to service. Upon notification of the denial, in February 2013 the Veteran requested reconsideration of the claims and submitted new evidence. The RO interpreted this claim as an application to reopen his previously denied claims, and in a February 2014 rating decision denied reopening his claims for service connection, citing a lack of new or material evidence having been submitted. The Veteran again requested reconsideration and submitted additional medical evidence; regardless, the claims were again denied in a September 2014 rating decision based on a lack of new and material evidence. The Veteran subsequently filed a timely Notice of Disagreement (NOD) of the claims in September 2014. The Board finds that the RO's interpretation of the Veteran's February 2013 request as an application to reopen a pervious denied claim, and the subsequent rating decisions that continued to decline to reopen the claims, to be in error, albeit harmless error. Here, subsequent to the initial August 2012 rating decision, the Veteran had a year to submit a NOD to appeal this initial decision on the merits. During this period, the Veteran not only submitted his applications for reconsideration, but also medical evidence to include a letter from his treating VA physician that described a nexus to service; therefore, the Board finds that such evidence and claim should have been interpreted as an appeal of the initial denial, and not a claim to reopen. Consequently, as new evidence was submitted within a year of his initial denial in August 2012, the Board finds that the current claims are a continuation of the original claims, and has been characterized accordingly herein. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that he developed his neck and headache conditions due to his in-service duties as a drill sergeant, which required him to constantly demonstrate to new soldiers how to march, crawl, jump while carrying a 50-pound rucksack and assorted weapons. In an August 2014 statement, the Veteran's treating VA physician, Dr. S.P., opined that the Veteran had chronic cervical disc degeneration that was at least as likely as not due to his military duties which required him to jump, crawl, heavy lift, carry heavy equipment, and repeatedly impact the ground by jumping. These activities caused his cervical disc degeneration. Further, it was at least as likely as not that his headaches were due to his neck condition, as cervical arthritis and degenerative disc disease were known to cause headaches. In February 2018, the Veteran underwent a VA examination. At that time, the examiner concluded that it was less likely than not that the Veteran's cervical spine degenerative disc disease was due to service. She explained that while degenerative disc disease can be caused by trauma, and that the condition "may have" started while the Veteran was in service, the fact that he did not seek treatment for the condition until years after discharge weighed against a finding that it began in service. Based on the foregoing, the Board finds that the evidence as to whether the Veteran's current neck disorder is related to his military service to be in relative equipoise. In this regard, both Dr. S.P. and the February 2018 VA examiner are medical professionals, considered all relevant evidence, and offered a rationale for their opinions. The Board notes that the VA examiner's opinion even suggests a possible in-service onset, based on the evidence of record. The Board finds that such opinions are entitled to equal probative weight and, when resolving all doubt in favor of the Veteran, it finds that his degenerative disc disease of the cervical spine is related to his military service and service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. Turning to the Veteran's claim of entitlement to service connection for headaches, as secondary to his now-service connected degenerative disc disease of the cervical spine, the Board notes that Dr. S.P. explained in her August 2014 statement that the Veteran's headaches were caused by the condition. Again, the Board affords significant probative value to this opinion, as Dr. S.P. is a medical professional who considered all relevant evidence and offered a rationale for her conclusion. Moreover, the record does not contain a contrary medical opinion. Consequently, the Board resolves all doubt in the Veteran's favor and finds his current headaches are proximately due to his now service-connected degenerative disc disease of the cervical spine and service connection on a secondary basis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.