Citation Nr: 21077220 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-13 529 DATE: December 29, 2021 ORDER Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for a right shoulder disability, as secondary to the service-connected cervical spine disability, is granted. Entitlement to service connection for a migraine disability, as secondary to the service-connected cervical spine disability, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his cervical spine disability is at least as likely as not related to his in-service automobile accident. 2. Resolving reasonable doubt in the Veteran's favor, his lumbar spondylosis and intervertebral disc syndrome are at least as likely as not related to his in-service automobile accident. 3. The Veteran's right shoulder strain manifested by fluid collection and pain is proximately due to his service-connected cervical spine disability. 4. The Veteran's migraine disability is proximately due to his service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical displacement, spondylosis, degenerative arthritis, and intervertebral disc syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for lumbar spondylosis and intervertebral disc syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right shoulder strain manifested by fluid collection and pain, as secondary to service-connected cervical spine disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for migraines, as secondary to the service-connected cervical spine disability, is met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1989 to May 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision. In November 2019, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing testimony is associated with the claims file. In April 2020, the Board remanded this appeal for further development. In October 2021, the Veteran was notified that the VLJ who conducted his hearing had retiredand was offered the opportunity to testify at an additional hearing before a VLJ who would participate in the decision. As the Veteran did not responded, the Board will proceed with adjudication of this appeal. Service Connection 1. Neck Disability The Veteran contends that his neck disability is the result of an in-service incident where he was struck by a motor vehicle in December 1991. In this regard, the Board concludes that the Veteran has a current disability related to the December 1991 motor vehicle incident. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran's treatment records document that he has degenerative arthritis of the spine, and intervertebral disc syndrome resulting in cervical displacement and spondylosis. Thus, the question becomes whether this current disability is related to the Veteran's service. On this question, there are probative opinions in favor of and against the claim. The evidence against the claim includes an October 2020 VA opinion that indicates that the Veteran's cervical spine conditions are less likely than not caused or aggravated by the December 1991 event. As rationale, the examiner explains that the Veteran complained of an elbow injury and contusion and that there is a lack of complaints or treatment for his neck at the time of the incident. The examiner also referenced the significant period of time between the incident in question and the Veteran's diagnosis of these conditions. The evidence in favor of the claim includes the opinion of a private examiner delivered in letters dated in December 2019, May 2020, and January 2021. The private examiner concluded that the Veteran's neck disability was the result of the in-service motor vehicle incident because, in addition to the elbow pain, at the time, the Veteran complained of pain in the upper back. The examiner indicated that his opinion was based on the medical evidence, the mechanism of injury, the normal disease, process, and the absence of any other known mechanical injury, medical conditions or plausible explanation for his complaints. Also, the examiner appears to have credited the statement of one of the Veteran's friends from his service period who recalls the Veteran complaining of back and neck pain following the December 1991 incident and the Veteran's own statement that he did seek additional treatment for his back and neck condition during service and received only pain medication without further examination or diagnosis. The evidence is at least in equipoise as to whether the Veteran's current cervical spine conditions are related to his service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for cervical spine degenerative arthritis, intervertebral disc syndrome, cervical displacement, and spondylosis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Back Disability The Veteran contends that his lumbar spondylosis is the result of the December 1991 motor vehicle accident where he was struck by a truck. In this regard, the Board concludes that the Veteran has a current disability that is related to the December 1991 motor vehicle incident. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The October 2020 VA examination and other treatment records document that the Veteran has intervertebral disc syndrome and lumbar spondylosis. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes the October 2020 VA opinion that the Veteran's low back conditions are less likely than not associated with the December 1991 incident due to the lack of contemporaneous back complaints and the length of time between that incident and the diagnoses of these conditions. The evidence in favor of the claim includes the opinion of a private examiner delivered in letters dated December 2019, May 2020, and January 2021. The private examiner concluded that the Veteran's back disability was the result of the in-service motor vehicle incident because, in addition to the elbow pain at the time, the Veteran complained of tenderness in his paraspinous muscles which are directly adjacent to the spinal column from the occipital bone to the sacrum. The examiner indicated that his opinion was based on the medical evidence, the mechanism of injury, the normal disease, process, and the absence of any other known mechanical injury, medical conditions or plausible explanation for his complaints. Also, the examiner appears to have credited the statement of one of the Veteran's friends from his service period who recalls the Veteran complaining of back and neck pain following the December 1991 incident and the Veteran's own statement that he did seek additional treatment for his back and neck condition during service and received only pain medication without further examination or diagnosis. The evidence is at least in equipoise as to whether the Veteran's current lumbar spine conditions are related to service. After resolving all doubt in favor of the Veteran, the Board finds that service connection for lumbar spondylosis and intervertebral disc syndrome is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Right Shoulder Disability The Veteran contends that his right shoulder condition is caused by his now service-connected neck disability. The October 2020 VA examination shows that he has a current disability of a right shoulder strain manifested by fluid accumulation and pain in the joint. In December 2019 and January 2021, the Veteran's private examiner opined that these conditions are at least as likely as not proximately due to, or the result of, the now service-connected neck disability. The VA examiner's primary reason for providing a negative opinion was that the Veteran's neck condition, which the VA examiner indicates is causing the Veteran's shoulder pain, was not in the judgment of the examiner related to the Veteran's service. However, as previously noted herein, the Board finds sufficient evidence of record to grant service connection for a neck disability. Accordingly, upon a complete and thorough review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current right shoulder strain, manifested by fluid accumulation and pain, is proximately due to his now service-connected neck disability. After resolving all doubt in favor of the Veteran, the Board finds that service connection for his right shoulder disability, as secondary to the now service-connected cervical spine disability, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Migraine Disability The Veteran contends that his migraines are caused by his now service-connected neck disability. His treatment records and examinations show that he has migraines, and the May 2020 private examiner opines that the Veteran's headaches are at least as likely as not proximately due to, or the result of, his now service-connected cervical disability. The October 2020 VA examination opinion simply disagrees with the etiological source of the Veteran's headache pain, appearing to ascribe it to his vision difficulties. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current migraine disability is proximately due to his now service-connected neck disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for migraines, as secondary to the now service-connected cervical spine disability, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.