Citation Nr: 21010761 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-17 498A DATE: February 25, 2021 ORDER Entitlement to service connection for a cervical spine injury is granted. FINDING OF FACT The Veteran’s cervical spine disability is at least as likely as not related to a motor vehicle accident (MVA) while in service. CONCLUSION OF LAW The criteria for service connection for a cervical spine 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 from February 1985 to January 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO) denying entitlement to service connection for a cervical spine disability. The Board remanded this issue in November 2014, January 2018, and January 2020 for further development. The Veteran then requested a hearing in front of a Veterans Law Judge which was held by the undersigned in January 2021. The transcript has been associated with the file. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active duty service, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.  Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a cervical spine injury The Veteran contends that he is entitled to service connection for his cervical spine disability due to an MVA that occurred during his active duty service. In a February 2011 medical treatment record, the Veteran was diagnosed with disc narrowing and spondylosis at C7-T1 and cervical anterior fusion at C5-C7. As a result, the first element of a current disability has been met. The next element requires an in-service injury or event. The Veteran asserts he was involved in an MVA in 1998 while still in service. He describes being stopped at the main gate while trying to access the Army base when a drunk soldier driving a car hit the Veteran from behind. The Veteran’s assertion is corroborated by three separate buddy letters from fellow servicemen. As the Board finds no reason to doubt the Veteran’s credibility in this assertion, the second element of service connection has been met. The question before the Board now is whether there is a positive nexus, or link, between the Veteran’s current cervical spine and the MVA in service. During the Veteran’s January 2021 hearing, he asserted that his cervical spine injury is a direct result of the MVA in 1988. The Veteran further stated that immediately following the accident his focus was assuring his two-week-old newborn son was seen by the medics first and was not thinking about getting himself checked for injury. In the following days, the Veteran stated he sought medical treatment after waking up unable to move as everything from his chest to his head was in pain. He further stated his wife had to drive him to base to be seen by a medical professional. Once examined, the Veteran testified that the attending physician told him he had “whiplash really bad.” In a December 2011 statement from the Veteran he recounted being told that the driver who hit the Veteran’s car was doing “over 50 miles per hour” upon impact. The Veteran then testified at the January 2021 hearing that he had “a lot of burning” type pain ever since the MVA in 1998 but the pain seriously increased in 2008. He describes both of his arms going numb and in 2010 he told a VA doctor about the pain. The Veteran started physical therapy but after blacking out and falling off an exercise bike, he did not continue therapy at the advice of the doctor. However, the Veteran also testified at the hearing that in 2010 he underwent neck fusion surgery at the age of about 44 years old. The surgery helped the Veteran for about six months after; however, the numbness and pain returned. The Veteran underwent a VA examination in February 2020 in which the examiner concluded that the Veteran’s cervical spine injury is less likely as not (less than 50 percent probability) related to an in-service injury, event, or disease during service. The examiner relied on a lack of medical evidence regarding a neck injury while in service and a gap of medical treatment for a neck injury from the end of the Veteran’s service in January 1990 to 2009. Additionally, the examiner states that the Veteran never sought treatment for his neck following the MVA while in service. Finally, the examiner concluded, “the [Veteran’s] neck condition is age related.” However, no rationale was provided for this assertion. The February 2020 VA examination relies heavily on a lack of medical treatment records to support their negative nexus conclusion. However, the examiner failed to consider the Veteran’s lay assertions that directly contradict the lack of medical records in the file without providing a rationale as to why the lay evidence was ignored. Additionally, the Veteran testified under oath in January 2021 that he did seek medical treatment only a day or two after the accident occurred. A lack of records alone is not enough to discredit the validity of the Veteran’s assertions. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). Based on the foregoing, the Board finds the February 2020 VA examination nexus opinion is not probative. In contrast, the Veteran submitted a private medical opinion in December 2011 in which the doctor indicated he had reviewed the Veteran’s entire claims file, medical files, and VA records. After doing so, the doctor stated “it is my opinion that it is more likely than not that [the Veteran’s] 1988 auto accident, which he sustained while in the military, can be directly attributed to his chronic and continuously painful cervical condition, radiculopathies and pathologies, and spinal degeneration.” The doctor concluded that Veteran’s specific injuries to the neck are “all indicative of severe whiplash, hyperextension/hyperflexion, trauma.” The doctor further indicated that the Veteran did not have any prior trauma to his spine except for the 1998 MVA and that the current symptoms the Veteran is experiencing developed over time due to the 1988 MVA and are not age related. The doctor stated that the Veteran’s current injury is a result of “post traumatic osteoarthritis” and his “spinal degeneration is directly related to a traumatic incident.” The doctor concluded that, “peer reviewed research papers establish that a rear-end auto accident will result in spinal injuries, degeneration, and long-term disability as [the Veteran] is currently experiencing.” The doctor further justified his conclusion by stating that the Veteran was given a whiplash diagnosis shortly after the MVA and as stated above, the Veteran’s injury is consistent with severe whiplash. Additionally, the doctor indicated the result of the Veteran’s April 2010 radiographic report “are a clear indication of prior trauma and existing pathobiomechanics and pathoneurological effects the [the Veteran] has been suffering.” The April 2010 report in question suggested a compression on the right side of the cervical cord due to a herniated disc which had been missed in the Veteran’s October 2009 examination. The doctor further supports his positive nexus opinion by stating that a car traveling at even 10 miles per hour that strikes the rear end of another car could cause serious injury to the victim. He states that when hit from behind at just 10 miles per hour the head can snap backwards, “unanticipated and without any support.” This can result in “acute hypertension and a violent posterior subluxation of the multiple joints of the neck….” The doctor also states that several long-term studies have proven that “even 10 to 15 years post auto accident, study subjects have continued to suffer with chronic pain and symptoms. Subjects that had 10 months of pain and physical limitations have a very poor prognosis of ever recovering from their injuries sustained at the time of the auto accident.” The doctor provided this nexus opinion after a careful consideration of the Veteran’s full record and his lay assertions. The doctor further considered the specific facts of this claim in combination with the relevant medical literature which indicated the Veteran’s current back disability is a result of the 1998 MVA. As a result, the Board finds this examination highly probative. The only probative evidence regarding the onset of the Veteran’s cervical spine disability is the competent and credible lay evidence provided by the Veteran and the private medical opinion providing a positive nexus between the Veteran’s cervical spine injury and the 1988 MVA. The Board finds that direct service connection for the cervical spine disability is warranted. The claim is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.