Citation Nr: 21013553 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-32 207A DATE: March 9, 2021 ORDER Service connection for a neck disability is granted. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the Veteran’s neck disability is etiologically related to in-service injuries. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1968 to December 1971, including service in the Vietnam War. The Veteran testified before the undersigned Veterans Law Judge during an April 2011 hearing. This matter is on appeal from a November 2007 rating decision. In an October 2011 decision, the Board remanded the claim to attempt to obtain additional records and afford the Veteran a VA examination. The Agency of Original Jurisdiction (AOJ) has done so. In an April 2014 decision, the Board remanded the claim again to attempt to obtain additional records and afford the Veteran a VA examination. The AOJ has done so. In an August 2017 decision, the Board denied service connection for a neck disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 memorandum decision, the Court vacated the Board’s decision and remanded the case to the Board for additional development. In a March 2020 decision, the Board remanded this issue again to afford the Veteran an additional VA medical opinion. In an August 2020 decision, the Board found that the resulting opinion was not in substantial compliance with its remand instructions and remanded this issue again to afford the Veteran an additional VA medical opinion. The AOJ has done so.  The September 2020 VA medical opinion for cervical spine conditions is adequate because it was based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because it described his neck in detail sufficient to allow the Board to make a fully informed determination.  There was therefore substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).    1. Neck Disability The Veteran contends that he has a neck disability that is etiologically related to his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service treatment records contain no mention of neck symptoms, but the Veteran has ascribed his current neck symptoms to multiple in-service injuries. The Veteran was afforded a VA examination in February 1972, two months after his separation from active duty service. Examination findings at that time included posterior cervical adenopathy. A September 2000 VA treatment record notes the Veteran’s report of a 30-year history of neck pain that he ascribed to a helicopter crash. Cervical spine x-rays from April 2000 showed slight anterior subluxation of the C5 vertebra. In a September 2006 statement, the Veteran added that the helicopter crash occurred during his service in Vietnam. In a February 2007 statement, the Veteran reported further details of the incident, including that he was “thrown out head first hit and rolled onto rocky surface onto [his] back.” During a May 2009 hearing before a Decision Review Officer, the Veteran reported that he did not report neck pain at the time of his separation from active duty service because, at that time, his low back pain was dominant. During the April 2011 hearing before the undersigned Veterans Law Judge, the Veteran testified that he did not report his neck symptoms at the time of his injury because he did not want to lose his flight status, instead treating his symptoms by obtaining ibuprofen from a corpsman. The Veteran was afforded a VA examination in October 2015. The clinician diagnosed cervicalgia with a disc bulge at C6-7. At that time, the Veteran attributed his symptoms to an in-service accident with a howitzer. As the Board noted in its March 2020 decision, the Court found in its July 2019 memorandum decision that the Veteran had demonstrated error or inadequacy in the grounds of the October 2015 VA clinician’s opinion. For this reason, the October 2015 medical opinion is inadequate for rating purposes and of no probative value; it will play no role in the Board’s analysis. In a May 2017 statement, the Veteran’s representative noted the Veteran’s report that his symptoms might also be due to a fall down stairs during his active duty service. The Veteran was afforded an additional VA medical opinion in May 2020. In its August 2020 decision, the Board found that this medical opinion was also inadequate for rating purposes. It is therefore also of no probative value and will play no role in the Board’s analysis. The Veteran was afforded an additional VA medical opinion in September 2020. The clinician opined that it was at least as likely as not that the Veteran’s current neck disability was incurred in or caused by active duty service. The clinician cited articles from the National Center for Biotechnology Information (NCBI) at the National Institutes of Health (NIH) that “document the under reporting of injuries of combat veterans” and found that “[a]pproximately half of musculoskeletal injuries in a Brigade Combat Team were not reported.” The clinician added that “[u]nreported and untreated injuries can lead to reinjury, chronic pain, performance decrements, and increased costs associated with disability benefits” and that “unreported injuries can undermine injury surveillance efforts aimed at reducing the musculoskeletal injury problem in the military.” For these reasons, the clinician found that it was at least as likely as not that the Veteran’s neck disability was caused by or incurred with either the helicopter crash or the howitzer accident. Of the medical opinions with regard to service connection on a direct basis, the only one that is adequate for rating purposes is that of the September 2020 VA clinician, whose reasoning is compelling. In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s neck disability is etiologically related to his active duty service. Accordingly, the Board finds that granting service connection for a neck disability is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.