Citation Nr: 21007367 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-02 262 DATE: February 9, 2021 ORDER Entitlement to service connection for a cervical spine disability, diagnosed as degenerative arthritis of the cervical spine, spinal stenosis, multilevel cervical spondylosis, multilevel foraminal stenosis, and multilevel cervical spondylosis, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the most probative evidence is in relative equipoise concerning whether the Veteran’s cervical spine disability, diagnosed as degenerative arthritis of the cervical spine, spinal stenosis, multilevel cervical spondylosis, multilevel foraminal stenosis, and multilevel cervical spondylosis, is causally related to active duty. CONCLUSION OF LAW The criteria to establish service connection for degenerative arthritis of the cervical spine, spinal stenosis, multilevel cervical spondylosis, multilevel foraminal stenosis, and multilevel cervical spondylosis have been met. 38 U.S.C. §§ 1110, 1111, 1112, 5103A, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1961 to April 1981, including service in the Republic of Vietnam. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran’s Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. The Veteran subsequently testified at a December 2020 hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. Entitlement to service connection for a cervical spine disability Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also 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). A layperson is competent to report on the onset and continuity of current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The medical evidence of record includes a diagnosis of a cervical spine disability, diagnosed as degenerative arthritis of the cervical spine, spinal stenosis, multilevel cervical spondylosis, multilevel foraminal stenosis, and multilevel cervical spondylosis, as stated by the October 2018 VA examiner. As such, element (1) to establish service connection has been met. Concerning element (2), the Veteran asserts that his cervical spine disability resulted from his experience as a passenger in aircraft taking off and landing on aircraft carriers while in service. At the December 2020 hearing, the Veteran described the experience of taking off and landing on aircraft carriers as rough and violent, and the need to brace himself to minimize the impact. The Veteran contends that his neck began to hurt during this time and has continued since. The Veteran sought treatment for his neck disability multiple times while in service, including in March 1970 and June 1974. To this extent, element (2) to establish direct service connection has been established. The Veteran was provided with a VA examination in November 2018 and an addendum opinion was provided in December 2018. The examiner opined in December 2018 that the Veteran’s in-service experience of neck pain was an acute disability. The examiner stated that the Veteran’s file was silent for repeated evaluations of neck pain in service, and therefore, the current cervical spine disability is not related to the in-service incurrences. The examiner did not address the etiology of the Veteran’s current disability and did not consider the Veteran’s lay statements in making the determination that no nexus exists between the in-service injuries and the Veteran’s current disability. To the extent that the VA examiner’s rationale is incongruent with the service treatment records showing multiple incidents of reports of, and treatment for, neck pain, the VA examiner’s opinion is based on an inaccurate factual premise. Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). For these reasons, the medical opinion is given little probative value. The Veteran has maintained that he sought treatment for his current disability while in service. His service treatment record contains at least three instances of treatment for neck pain, which he maintains is due to the violent nature of being on aircraft leaving and returning to aircraft carriers. At the December 2020 hearing the Veteran explained that he did not seek further treatment throughout his time in service because he did not want to lose his aircraft clearance. During service the Veteran was “instructed not to fly” while receiving treatment for his neck pain; and a March 1970 treatment note states that the Veteran was prescribed valium to treat his neck pain and “was not to fly” while using the prescription. After separation from service, the Veteran was not subject to the same circumstances which gave rise to his neck pain, as he was involved with drones instead of planes. The Veteran reliably maintains that his initial neck injuries from the early 1970s have caused consistent pain since that time. The Board further observes that the Veteran is diagnosed with chronic diseases that are capable of being linked to service by way of his credible statements of continuity of symptomatology. In light of above, the Board finds that the evidence of record is at least in relative equipoise concerning whether the Veteran’s cervical spine disability, diagnosed as degenerative arthritis of the cervical spine, spinal stenosis, multilevel cervical spondylosis, multilevel foraminal stenosis, and multilevel cervical spondylosis, is a result of the Veteran’s active service. In such cases, the Court has held, and VA laws provide, that service connection is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, Associate 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.