Citation Nr: 21008500 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 00-00 576 DATE: February 17, 2021 ORDER Service connection for neck injury residuals, to include degenerative joint disease of the cervical spine is granted. FINDING OF FACT The Veteran has experienced chronic neck pain, cervicalgia, and cervical spine issues related to his degenerative joint disease (arthritis) since separation of service in 1973. CONCLUSION OF LAW The criteria for entitlement to service connection for neck injury residuals, to include degenerative joint disease (noted as arthritis) of the cervical spine have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the US Army from June 1970 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in July 2006, and a copy of the transcript is of record. In September 2017, the Veteran was notified that the VLJ who conducted the hearing is no longer at the Board. In October 2017 the Veteran stated that he did not wish to have a hearing before another VLJ. The procedural history of this case is lengthy, involving multiple actions by the Board. Initially, the Board reopened the previously denied claim of service connection for residuals of a neck injury in a March 2007 Board decision and remanded the claim to the agency of original jurisdiction (AOJ) for further development and readjudication on the merits. Subsequently the claim was remanded in November 2010, May 2012, January 2015, December 2017, and April 2020. On each occasion, additional development was required for VA to fulfill its duty to assist the Veteran in developing his claim. In November 2010, the claim was remanded for a VA examination. The AOJ obtained a VA medical examination with accompanying opinion in January 2011. However, upon return for appellate consideration, the Board noted that the January 2011 VA opinion was inadequate, as there was no indication the examiner considered post-service treatment records or the Veteran’s lay statements. As a result, the Board remanded the claim in May 2012. In January 2015, the Board noted that the AOJ failed to comply with the May 2012 remand directives; it did not obtain an addendum VA medical opinion. The AOJ only issued a supplemental statement of the case (SSOC) addressing the claim in July 2014. As such, the matter was once again remanded to obtain the medical opinion. An addendum opinion as to the etiology of the Veteran’s neck injury residuals was obtained in May 2015. In December 2017, the claim was remanded to obtain an addendum opinion as it appeared that the May 2015 VA examiner’s opinion was based, at least partially, on an inaccurate factual premise. In May 2019, the AOJ afforded the Veteran a new VA examination and medical opinion. However, in April 2020 the Board again remanded the case because the May 2019 VA examination did not discuss the significance of the Veteran’s March 1993 VA examination report or October 1999 VA treatment record as directed by the December 2017 remand directives. The April 2020 Board remand instructed the AOJ to obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s cervical spine disability is at least as likely as not related to the Veteran’s service, to include his in-service neck injury. The examiner must specifically note that he or she took into consideration the Veteran’s March 1993 and June 1999 lay statements, as well as the March 1993 examination report and October 1999 VA treatment record history. The issue has returned to the Board again after the April 2020 remand and is ready to be fully and finally adjudicated. Entitlement to service connection for neck injury residuals, to include degenerative joint disease of the cervical spine The Veteran contends that he is entitled to service connection for neck injury residuals, to include his degenerative joint disease—a form of arthritis, of the cervical spine. In October 2020, the Veteran was granted service connection for his neck strain injury. The Agency of Original Jurisdiction continued to deny service connection for degenerative joint disease of the cervical spine and the appeal was returned to the Board. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present 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, 1166-67 (Fed. Cir. 2004). Service connection may also be presumed for certain chronic diseases, such as arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§1101, 1112, 1113, 1137; 38 C.F.R. §§3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumptive period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. §3.303 (b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. §3.303 (b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. §3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303 (b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). The Board finds that the Veteran’s claim for service connection is substantiated under a theory of continuity of symptomatology. The Veteran has complaints of the cervical spine and neck pain dating back to 1973. The cervical spine has been significantly evaluated for medical treatment and the Veteran now has a brace that he uses to stabilize the neck and cervical spine. The Veteran also has a current diagnosis of degenerative joint disease and degenerative arthritis of the cervical spine. In 1972, the Veteran was evaluated and treated for a neck injury in-service. He was prescribed valium and heat application and was diagnosed with a neck strain. After leaving the service in 1973, the Veteran still complained of neck pain. In a medical examination, the Veteran also recalls complaining of the neck pain in 1974 to a medical provider. The Veteran also states that he got a soft collar due to the neck pain in 1978. The Board finds the Veteran experienced continuous symptoms in the same area of his neck and spine and received treatment after service. The Veteran was evaluated and treated multiple times in the mid-90s into the 2000s. In the 1990s the Veteran reported restricted movement in the neck, as well as left arm pain and numbness since 1972. The medical providers stated that there was a possibility that the Veteran was suffering from cervical spondylosis. In 1993 there is a treatment note that officially diagnosed the Veteran with degenerative arthritis of the cervical spine. In 1999 there are more treatment notes, where the Veteran continues to report a tingling in his left upper extremity and painful movement of the neck. In 1999 the Veteran received an x-ray of his cervical spine that revealed degenerative joint disease, with specific narrowing of the C6 and C7 disc space. Another x-ray in June of 1999 showed cervical spondylosis and confirmed the diagnosis of cervical spine arthritis. The Veteran also reported that he wears a neck brace chronically for his cervical arthritis. In October of 1999, treatment notes indicate that the Veteran has had a history of cervicalgia since 1970 and that it causes a shooting pain down his left arm when he moves his neck suddenly. An October 1999 MRI again shows evidence of degenerative joint disease and joint space narrowing in the cervical spine. The Veteran underwent more treatment in 2005, including another MRI. These treatment records note degenerative changes in the Veteran’s lower cervical spine, as well as complaints of neck pain and intermittent numbness of both upper extremities. At the end of 2005, the Veteran is still complaining of his neck pain and the medical provider notes his history of cervical spondylosis. In 2009 and 2011 medical records again show that the Veteran received treatment for his cervical spondylosis. In 2013 the Veteran continues to complain about his chronic neck pain. In 2015 treatment records note the mild degenerative changes in the cervical spine and in 2016 the Veteran is diagnosed with cervical spondylosis with radiculopathy. In the May 2019 VA examination, the Veteran reported flare-ups of the neck pain and functional impairment due to the cervical spine. Objective evidence also found localized tenderness and pain on the joint and soft tissue of the cervical spine. The Veteran was also found to have guarding and muscle spasms of the cervical spine, resulting in abnormal spinal contour and abnormal gait. The cervical spine precludes the Veteran from lifting, pushing, or pulling heavy objects. In October 2020 another VA examination took place. The examiner concluded the neck strain was related to service and then concluded the degenerative joint disease of the neck was less likely related to service. As rationale the examiner cited to the fact that the condition appeared 20 years after service. The examiner also stated that it is not possible to identify which neck symptoms relate the Veteran’s neck strain and which are attributable to the Veteran’s cervical spine arthritis. The examiner noted that the neck pain and limited range of motion of the neck are likely the result of both the neck strain and cervical arthritis. The Board finds the VA examiners opinions to be less than probative, as they fail to consider the Veteran’s lay report of continuity of symptoms. The VA examiners downplayed and disregarded several treatment records in the 1990s and early 2000s indicating continuing neck and cervical spine problems. Significantly, the October 2020 examiner states that it is not possible to identify which symptoms relate to the Veteran’s neck strain and which relate to the cervical arthritis but did not discuss whether the continuing symptoms could be early manifestations of the arthritis. While further development could be undertaken to determine the etiology of the degenerative joint disease of the cervical spine, in this case, the Board finds service connection for neck injury residuals, to include the Veteran’s cervical degenerative joint disease, has been established on the basis of continuity of symptomatology of a chronic disease. The Veteran was evaluated in service for neck strains. The Veteran has reported continuous neck and cervical spine pain since service. While there are gaps in the treatment records, the Veteran has been consistent in reporting the pain. For example, although the cervical spine arthritis and degenerative joint disease were not diagnosed until the 1990s, treatment records reflects the Veteran reported frequent neck pain and limitation of motion. He consistently reported to medical providers that the initial injury was during service. He subsequently was diagnosed with degenerative joint disease and the examiners have indicated they are not able to easily distinguish symptoms from the degenerative joint disease as opposed to the strain. In this regard, symptoms and not treatment are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). The continuation of the Veteran’s symptoms establishes a link between his cervical spine condition and the neck injuries noted in service. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds service connection is warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.