Citation Nr: 21011728 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-42 907 DATE: March 2, 2021 ORDER Entitlement to service connection for degenerative arthritis of the cervical spine is granted. FINDING OF FACT The evidence is at least as evenly balanced as to whether the Veteran’s degenerative arthritis of the cervical spine is related to an in-service neck injury. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for degenerative arthritis of the cervical spine have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1975 to May 1975 and from July 13, 1991 to July 28, 1991. The Veteran served in the U.S. Air Force from October 1978 to November 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO denied the Veteran’s claim for service connection for cervical spine condition.  In March 2015 the Veteran filed a notice of disagreement (NOD), and a statement of the case (SOC) was issued in September 2015. In August 2018, the Board remanded the claim for additional development, specifically a new medical examination and opinion. In July 2020, the RO issued a supplemental statement of the case (SSOC) continuing the denial of the Veteran’s claim. Entitlement to service connection for degenerative arthritis of the spine is granted. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). The Veteran asserts that he experienced neck pain since his July 25, 1991 motor vehicle accident. At an August 2019 VA examination, the Veteran was diagnosed with degenerative arthritis of the cervical spine.  Therefore, a current disability has been demonstrated. 38 C.F.R. § 3.303(a). As to the in-service injury element, on the November 2015 NOD the Veteran indicated that he injured his neck in a July 25, 1991 motor vehicle accident during service. There are medical and personnel records documenting his July 25, 1991 motor vehicle accident. The Veteran’s statements are competent and credible. Therefore, the in-service injury requirement has been met.  The remaining question is whether a nexus exists between the Veteran’s current degenerative arthritis of the cervical spine and the in-service neck injury. An August 2019 VA examiner diagnosed the Veteran with degenerative arthritis of the cervical spine and opined that the Veteran’s spinal condition is less likely than not related to his July 25, 1991 motor vehicle accident. The VA examiner based his opinion regarding the etiology of the Veteran’s spinal condition on the lack of contemporaneous objective evidence documenting the Veteran’s spinal injury at the time of the July 25, 1991 accident. The VA examiner opined that the Veteran’s current spinal symptoms are related to degenerative changes from wear and tear of the spinal discs. However, the VA examiner’s opinion is inadequate because the VA examiner did not consider the Veteran’s lay statements concerning the onset of his injury and the continuous neck symptoms he has suffered since discharge. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). In a February 2013 statement, the Veteran’s wife reported that since his July 25, 1991 motor vehicle accident the Veteran suffers from tightness in his neck and shoulders. The Veteran explained that during the July 25, 1991 motor vehicle accident he was trapped inside the vehicle for 90 minutes and sustained arm and neck injuries. In his November 2015 NOD the Veteran explained that as a result of the shock he suffered following the motor vehicle accident he sought immediate treatment for the laceration on his arm and delayed treatment for his neck injury. He indicated that he has suffered from neck pain with muscle spasms in his neck and shoulders since the in-service accident. The Veteran and his wife are competent to report certain types of symptoms and injuries, which are capable of lay observation, such as neck pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). The Board finds these statements credible, particularly given the consistency of the statements with each other and the other evidence of record. As noted by the Veteran’s representative in the October 2020 post remand brief, the Veteran’s neck symptoms were consistent with the circumstances of being in a motor vehicle accident and that the July 25, 1991 motor vehicle accident is the only known documented cervical spine injury the Veteran has had in his lifetime. Although the Board could remand the claim for another medical opinion, there is sufficient evidence to decide the claim, and a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is sufficient to decide the claim. Given the evidence of current disability and in-service injury, the competent, credible lay statements of continuous neck pain and symptoms, and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran’s degenerative arthritis of the cervical spine is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for degenerative arthritis of the cervical spine is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Henderson, 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.