Citation Nr: 21008778 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-18 611 DATE: February 18, 2021 ORDER Entitlement to service connection for cervical and lumbar spinal disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his cervical and lumbar spinal disability is at least as likely as not related to an in-service motor vehicle accident (MVA). CONCLUSION OF LAW The criteria for service connection for a cervical and lumbar spinal disability are met. 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 in the United States Army from July 1958 to June 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran did not appear for a video conference hearing before the Board scheduled in June 2018. This matter was last before the Board in September 2018, at which time the Veteran’s claim was remanded. 1. Entitlement to service connection for a spinal disability The Veteran contends that he was involved in a motor vehicle accident (MVA) in 1959 during active service in France. He further contends that his vehicle flipped over and rolled down a cliff, rendering him unconscious and resulting in his current claimed spinal disability and residuals of a head injury. The Veteran’s service treatment records (STRs) are silent as to the occurrence of a 1959 MVA. However, the Veteran’s STRs indicate that he served in France for a period between 1959 and 1961, at which time he was treated on multiple occasions for complaints of cervical spine pain and headaches; with the earliest of the complaints occurring in April 1959. Additionally, the Veteran’s VA treatment records indicate that for the period on appeal, he has consistently maintained that his current claimed conditions are the result of the in-service MVA. The Board finds that the lay testimony is credible with regard to an in-service incurrence. With regard to the Veteran’s spinal disability, post-service treatment records indicate that the Veteran has current diagnoses of lumbar spine stenosis and cervical spine spondylosis, intervertebral disc syndrome of the cervical spine and low back pain. See April 2019 VA examination reports and September 2019 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire In September 2018, the Board remanded the issues of a spinal disability and traumatic brain injury (TBI) for an examination and opinion. In remanding these issues the Board noted the possibility of the Veteran’s claimed in-service MVA being the related event to both issues. The directives of the Remand included direction for the examiner to assume as true for purposes of the examination the Veteran’s account of an in-service MVA. In an April 2019 VA medical opinion, the examiner opined “it is at least as likely as not (50 percent probability or greater) that the identified spinal disability had their onset during active service or are related to any incident of service.” The examiner’s rationale is a series of evidentiary notes including the Veteran stating back and neck pain began while in the military after auto accident and back and neck pain treatment from December 2014 to present. Following review of the April 2019 VA medical opinion, the Agency of Original Jurisdiction (AOJ) deferred the claim for a VA medical opinion addendum as to the favorable opinion without discussion of the evidence or appropriate supporting rationale. The deferred decision requests the examiner to address the medical and lay evidence to include the history of regarding the back disability since 2014. Lay evidence cannot be found not credible solely due to the lack of contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). There is no requirement that both medical and competent lay evidence is required to establish a claim; rather, competent lay evidence can be sufficient on its own to establish any element of a claim. Id. The Board can weigh the lay testimony and make a determination as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). In the September 2018 remand, the Board found the Veteran’s lay evidence competent. In an October 2019 medical opinion addendum, the provider opined “it is at less likely than not that any identified spinal disability had their onset during active service or are related to any incident of service. The provider’s rationale is based on a lack of available supporting evidence from 1960’s until 2014. The provider states “[t]here is no mention of a motor vehicle accident or any head injury.” The provider cites to medical records that indicate the Veteran’s neck pain seems to be associated with tension headaches. The provider cites a June 1959 medical record showing the Veteran’s tonsils were removed. The provider concludes the review of these records “illustrate an ENT rather than spinal issue.” The provider’s rationale does not consider the Veteran’s lumbar spine disability. In review of the evidence, the Board notes the April 2019 TBI medical opinion. The examiner opined “[i]t is at least as likely as not (50 percent probability or greater) that any identified head injury or tbi residuals had their onset during active service or are related to any incident of service.” The examiner’s rationale is based on the Veteran reporting a MVA in 1959 while during active military service. (Continued on the next page)   The AOJ rendered a Supplemental Statement of the Case (SSOC) in October 2020 denying entitlement to service connection for a spinal disability. The AOJ concludes: “To date, no evidence has been received that shows your claimed condition began in or is otherwise related to your military service. Therefore, in the clinical absence of such evidence service connection remains denied.” At the time of the SSOC the AOJ also rendered a rating decision granting entitlement to service connection for TBI. The AOJ supported their decision by stating: “The VA examiner provided a medical opinion that your current condition was at least as likely as not incurred in or due to the MVA event you reported in service and supported by complaints of headache and neck pain shown in the service record.” Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current cervical and lumbar stenosis is related to his in-service MVA. The Board finds that the April 2019 and the October 2019 VA opinions are competent and credible. The Board also finds that the Veteran’s lay statements as to an injury in service are credible. The April 2019 VA examination noted diagnoses of degenerative spondylosis and moderate fact arthropathy of the cervical spine and spinal stenosis disc disease and lumbar arthroplasty. The September 2019 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire showed diagnoses of cervical spondylosis, intervertebral disc syndrome of the cervical spine and low back pain. After resolving all doubt in favor of the Veteran, the Board finds that service connection for cervical and lumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, Attorney Advisor 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.