Citation Nr: 21022140 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-03 222 DATE: April 14, 2021 ORDER Service connection for a cervical spine disability is granted. FINDING OF FACT The Veteran’s cervical spine disability was incurred during service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to January 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In May 2018, the Board reopened the previously denied claim of service connection for a cervical spine disability and remanded that claim for additional development. This case was again remanded in April 2020 for further development and is now again before the undersigned. Service connection for a cervical spine disability Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Where lay evidence is competent, the Board must weigh the competent lay evidence against the other evidence of record in determining credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). However, the absence of corroborating records is an insufficient basis on which to find lay statements not credible. Id. at 1337. The Veteran has a diagnosis of a cervical spine disability. See April 2012 and May 2019 VA cervical spine examinations. His service treatment records (STR) show complaints of, and treatment for, back and neck pain following a July 1988 motor vehicle accident (MVA). See July 1988 STR. A November 1993 separation report of medical examination showed a normal clinical evaluation of his spine, and his November 1993 separation report of medical history only contained complaints of heartburn, decreased hearing, and bilateral pes planus. The Veteran separated from service in January 1994. During May 1994 treatment, the Veteran complained of neck pain, which he reported having for three months. See May 1994 private treatment record. During his December 1998 VA spine examination, the Veteran reported that he was able to return to his normal level of activity 10 days after the in-service MVA and did not recall any recurrences of neck pain following his initial injury. The Board is aware that the Veteran has had several MVAs post-service, the first of which was in April 1996. Following that MVA, a cervical strain was diagnosed. A May 2019 VA examiner diagnosed cervical strain and, following a review of the medical records, stated that the Veteran was seen in service for neck pain and “has continued with low back pain since then with current examination showing pain with deceased range of motion of the cervical spine.” (The Board notes here that there appears to be a typo within the report and that the examiner actually intended to say that the Veteran has continued with neck pain since service.) The Board notes that there are negative VA opinions in the record, but those have been previously found to be inadequate and are thus accorded no probative weight. The most recent VA opinion provider stated that the Veteran had an acute neck strain during service and that his separation examination was negative for neck complaints although back complaints were noted (for which service connection has been granted). See June 2020 VA medical opinion. The examiner concluded that it would be unlikely that any ongoing neck condition would not have been noted while back complaints from the same MVA were noted. He ultimately based his negative opinion on the findings of the December 1998 VA examination. The Board accords this examination no weight as well for two reasons. First, the examination is based on an inaccurate factual premise that the Veteran’s separation examination included complaints of back pain when it, in fact, does not. See November 1993 separation report of medical history and report of medical examination. Second, the December 1998 VA examiner’s negative opinion was based on the Veteran’s statement that he had no recurrence of neck pain following his initial in-service injury. However, regardless of what the Veteran stated during the December 1998 examination, a full review of his records would have shown that he complained of neck pain only a few months following his separation from service. The Board finds the concurrent post-service treatment records highly probative. Accordingly, based on the Veteran’s STRs showing complaints of neck pain, his complaints of neck pain shortly after service, and the May 2019 opinion that his neck disability is related to his service, the Board finds that service connection for a cervical spine disability is warranted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.