Citation Nr: 21022887 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-31 966A DATE: April 19, 2021 ORDER Entitlement to service connection for a neck disability, to include degenerative arthritis of the cervical spine, is granted. REMANDED Entitlement to service connection for a lumbar spine disability, also noted as back disability, is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s current neck disability was incurred in service. CONCLUSION OF LAW The criteria for establishing service connection for degenerative arthritis of the cervical spine has been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 through September 1985. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. Entitlement to service connection for a neck disability The Veteran contends that his neck disability began in-service and has continued since. Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). Certain chronic diseases, such as arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. There is no question the Veteran has a current diagnosis of a neck disability, which includes a diagnosis of degenerative arthritis of the cervical spine. April 2012 VA examination. Thus, the first element of service connection is met. The remaining questions before the Board are whether there was an in-service incurrence of a disease or injury; and whether his current disability is related to an in-service incurrence (nexus), if any. The Veteran’s entrance examination showed no diagnoses related to neck disability. In October 1983, service treatment notes document an examination noting moderate muscle tension in the Veteran’s upper thoracic and cervical spine. Approximately one month later, in November 1983, service treatment notes documented substantial cervical muscle spasms and muscle tenderness. At the time, the Veteran’s history of trauma to the cervical spine from jumping three to four years prior was documented. The Veteran continued to complain of neck paresthesia and frequent right head headaches as a result of this trauma. In March 1984, service treatment notes continued to document the Veteran’s complaints of headaches and muscle tenderness in his neck. As the record contains evidence of in-service injury and a presentation of symptoms related to a neck disability, the second element is satisfied. The remaining question before the Board is whether the Veteran’s current neck disability is related to his in-service injury and presentation of symptoms (nexus). The first available medical record post-service shows chiropractic treatment for the Veteran’s neck disability. The Veteran reported that he had sustained neck injuries 26 years ago in the Army. These records also confirm that he had sought chiropractic treatment seven years prior. At an April 2012 VA examination, the examiner documented a neck disability that had its onset in 1979. The Veteran endorsed that he had injured his neck in the military and had suffered from neck pain since that time. The examiner ultimately opined that the Veteran’s neck disability is less likely than not incurred or caused by his in-service injury. The examiner incorrectly noted that the Veteran’s service treatment records were silent for complaints or treatment of any neck condition. One entry showed a diagnosis of neck spasms due to tension headaches, but the separation physical revealed normal spine and musculoskeletal. VA treatment notes thereafter continued to document the Veteran’s report that his neck disability began in-service and has continued ever since. In October 2013, the Veteran submitted a detailed list of his history of treatment for his neck disability dating back 1986, just after the Veteran’s discharge. However, many of the medical records are unavailable due to the age of treatment notes. At a January 2020 VA examination, the Veteran was afforded another VA examination for his neck disability. The examiner again opined that the Veteran’s neck disability is less likely than not related to his in-service injury. It was explained, in relevant part, that the record does not contain ongoing complaints, diagnoses, or treatment while on active duty or for 29 years after separation. Further, degenerative disc disease of the neck is caused by age and daily activities that cause wear and tear. There is no evidence provided that shows that the Veteran has a long-standing neck issue due to the military. Rather, a physical therapy note supports that the Veteran has done other activities in his life that could cause wear and tear on the cervical spine discs. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s currently diagnosed neck disability is related to his military service. As addressed above, his neck disability is considered a chronic disability. Thus, presumptive service connection may be established by a showing of a continuity of symptoms since service. Here, the Veteran established a continuity of symptoms since service through his consistent and competent reporting that his symptoms related to a neck disability began in-service and has continued ever since. The first available medical treatment record post-service documents the Veteran’s report of a neck disability and Veteran’s report of its connection to his in-service injury. The Veteran has also submitted a detailed list of medical treatment for his neck disability since service. Although many of these medical records are unavailable, the Board finds no reason to doubt the Veteran’s credibility in his assertion that he sought continued treatment for a neck disability, especially in light of the fact that that the first available medical treatment record notes prior medical treatment. There also exists competent medical evidence against finding service connection for the Veteran’s neck disability. Resultantly, the Board finds that the positive and negative evidence in this matter is in relative equipoise. Based on the aforementioned, the Board will resolve all reasonable doubt in the Veteran’s favor and grant service connection for a neck disability. REASONS FOR REMAND Entitlement to service connection for lumbar spine and left knee disabilities The Veteran contends that his lumbar spine and left knee disabilities are related to his service. Specifically, he alleges that his back disability is a result of several injuries he sustained during service, including jumping off of platforms while in airborne school, working 12 hour shifts standing, a fall from a service vehicle, a bar fight, and from falls while bull riding. He has also alleged that these disabilities began in-service and have continued ever since. The November 2019 Board remand requested that a VA examiner consider whether the Veteran’s in-service activities of: serving as a military policeman, jumping off of platforms while in airborne school, being involved in a fist fight at a bar where he was strict multiple times across the back, having bad landings from a bull riding event, and falling out the back of a military vehicle, is at least as likely or not related to the Veteran’s current left knee and lumbar spine disabilities. In January 2020, a VA examiner opined that it was less likely than not that the Veteran’s left knee and lumbar spine disabilities were incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that medical records are silent for a claim of chronic left knee or lumbar spine conditions while in service. Further, there are no chronic complaints, care, diagnoses, or treatment of a lumbar spine or left knee disability found in the available records. The examiner then noted that the Veteran had documented subjective information within a statement from his chiropractor, but there was no evidence of a chronic lumbar spine or left knee disability caused from the Veteran being in service. The Board finds that the January 2020 VA examiner’s opinion is inadequate because it is based wholly on the absence of objective evidence showing a chronic lumbar spine or left knee disability, but does not appropriately consider the Veteran’s lay statements concerning events and activities leading to these disabilities or his assertion that these disabilities began in-service and have continued ever since. Notably, the Veteran testified that he would often obtain treatment, such as bandages and medications, without annotations to his medical service record. Relying on the absence of evidence in medical records without regard for lay statement to provide a negative opinion is contrary to established case law. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, further development is necessary. Additionally, the Veteran is service-connected for a right knee disability. Medical evidence of record suggests that the Veteran’s injury to his right knee, and resulting imbalance, may have caused an injury to his left knee. See VBMS document labeled CAPRI, receipt date 8/2/2013, page 12 of 21. However, no VA examiner has considered whether the Veteran’s left knee disability was caused or aggravated by his service-connected right knee disability. The theory of secondary service connection for the Veteran’s left knee disability should also be explored upon remand. The matters are REMANDED for the following action: 1. Obtain opinions as to the nature and etiology of the Veteran’s left knee and lumbar spine disabilities. The clinician is asked to opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s left knee and lumbar spine disabilities are related to his active duty service? This includes: his duties as a military policeman, jumping off of platforms while in airborne school, being involved in a fist fight at a bar where he was “struck multiple times across the back,” having bad landings from a bull riding event that he attended with his unit, falling out the back of a military vehicle when his foot slipped while attempting to climb onto it, and working twelve-hour shifts standing at the gates as security for nearly two years. See VBMS, document labeled Hearing Transcript, receipt date 7/17/2019, pages3, 5, 6, 8, and 9 of 18; VBMS, document labeled Correspondence, receipt date 8/15/2019, page 2 of 4. 2. Additionally, the examiner is asked to opine whether the Veteran’s left knee disability is at least as likely as not caused or aggravated beyond its natural progression by his service-connected right knee disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.