Citation Nr: 21010112 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-29 532 DATE: February 24, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. FINDING OF FACT The evidence is at least in equipoise that a cervical spine disability is related to an in-service back injury. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have been 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 from January 1974 to December 1975. The Veteran appeals August 2010 rating decisions from the Department of Veteran Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The matter was previously before the Board in October 2019. Pursuant to a September 2020 joint motion for partial remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated the portion of the Board’s October 2019 decision regarding service connection for cervical spine disability and remanded the claim to the Board for compliance with its instructions. The Board observes that the claim for entitlement to benefits under 38 U.S.C. § 1151 for residuals of allergic reaction to Lisinopril was previously remanded in October 2019 and is no longer before the Board as the Veteran opted in to the appeals modernization system with respect to that issue. Entitlement to service connection for a cervical spine disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 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, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The questions for the Board are whether the Veteran has 1) a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or 2) a current disability that is proximately due to or the result of, or aggravated beyond its natural progress by a service-connected disability. The Veteran has a current diagnosis of degenerative disc disease of the cervical spine. In the Veteran’s March 2013 hearing, the Veteran stated that while playing football in service, he injured his lower back and hit his head when he fell and ended up on the bottom with others on top of him. The Veteran service treatment records (STRs) do not document any complaints, findings, treatment, or diagnoses pertaining to his cervical spine. Following the Veteran’s separation from service, VA treatment records reveal that the Veteran first sought treatment for neck pain nearly 30 years later, in August 2004. VA x-rays in August 2004 revealed loss of the normal cervical lordosis, loss of disc height at C3-C4 and C4-C5, and some small osteophytes anteriorly at C3-C4 through C5-C6. A July 2009 VA treatment record noted that the Veteran had no known injury for the neck with symptoms beginning three to four years prior. July 2009 VA x-rays revealed exaggeration of the normal cervical lordosis and spurring of vertebral endplates in the mid-cervical spine. A VA MRI, in October 2010, revealed degenerative disc disease throughout the cervical spine. The Veteran asserted, in his November 2011 VA Form 9, that he had been told by a doctor that old back injuries could cause problems in the neck later in time. At the Veteran’s March 2013 hearing, the Veteran acknowledged that he was not treated for his neck after injuring his back in a football game, or for a while after service. However, he testified that his altered gait and current need to use a cane and walker (causing him to be bent forward all the time) due to his service-connected lumbar spine disability could be causing or aggravating his cervical spine disability. The Veteran was afforded a VA Neck examination in March 2014.The examiner noted the Veteran’s diagnoses of cervical spine arthritis and spinal stenosis and reported the date for diagnoses to be in the 1990s. The examiner opined that it is at least as likely as not that the Veteran’s cervical spine disability is due to his military service. He reasoned that it is likely due to the arthritis that led to the development of his service-connected lumbar spine disability but not aggravated by the lumbar spine disability. In April 2014, the Veteran was afforded another VA examination. The VA examiner diagnosed the Veteran with degenerative arthritis of the cervical spine. The VA examiner noted that the it was not until recently that the Veteran reported having neck problems (which was diagnosed as degenerative disc disease on the MRI in 2010). She opined that there was no evidence to show in the service treatment records that the Veteran’s neck was injured when he injured his lower back in 1975 and that it was less likely as not that the cervical spine disability is causally related to any incident of the Veteran’s military service. Further, the VA examiner opined that degenerative disc disease in one part of the body does not cause degenerative disc disease in another part of the body. The VA examiner stated, “Arthritis can develop in joints without any injury, and if a person is destined to develop arthritis in one joint, that person may develop arthritis in another joint unrelated to the first joint to develop arthritis. The same is true with degenerative disc disease.” The VA examiner added that, “Just because [the] Veteran developed degenerative disc disease in the lumbar spine does not mean that it is the cause of the degenerative disc disease in another part of the spine.” Finally, the VA examiner stated that degenerative disc disease in the lumbar spine and degenerative disc disease in the cervical spine are “mutually exclusive entities and one does not influence the other.” In July 2014 correspondence, the Veteran reported that after separation, he began to experience pain in the neck and back. He asserted that a physician in Germany told him that he could or would experience problems in the future resulting from his back injury. Additionally, the Veteran contends that during several visits with his primary VA care physician, the Veteran has been told that his neck pain is due to his spine injury. Based on the above, the Board finds that service connection for a cervical spine disability is warranted. Although VA treatment records do not show treatment for neck pain until 2004, nearly three decades since the injury to the lumbar spine and the Veteran, in his March 2013 hearing, admitted that he did not seek treatment for his neck until well after separation, he also reported experiencing pain in his neck after separation. Notably, the March 2014 VA examiner provided a positive nexus opinion that the Veteran’s cervical spine disability is due to his military service noting that it is likely due to the arthritis that led to the development of his service-connected lumbar spine disability. The Board observes that the April 2014 VA examiner provided negative nexus opinions on direct and secondary bases and indicated that degenerative disc disease may develop in one part of the body unrelated to the presence of degenerative disc disease in another part of the body and that because the Veteran had degenerative disc disease in one part of the spine (i.e. lumbar spine) does not mean that it is the cause of degenerative disc disease in another part of the spine (i.e. cervical spine). However, as noted in the JMPR, the opinion provided by the April 2014 VA examiner is inadequate for failing to address the Veteran’s lay statements and whether the Veteran’s altered gait or forward leaning as a result of the service-connected lumbar spine disability caused or aggravated his cervical spine disability. Further, as service connection is warranted on a direct basis, service connection for a cervical spine disability on a secondary basis need not be considered. In light of the above, the Board concludes that the evidence is at least in equipoise in finding that the Veteran’s cervical spine disability was incurred in or is related to his active service. Accordingly, service connection for a cervical spine disability is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.