Citation Nr: 21024774 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-40 318A DATE: April 26, 2021 ORDER Entitlement to service connection for a cervical spine disorder (the neck) is granted. FINDING OF FACT A cervical spine disorder had its’ onset on active duty. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1969 to June 1971. In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In January 2019, the Board issued a decision that granted the Veteran’s application to reopen his claim of service connection for a cervical spine disorder and denied service connection for a cervical spine disorder. The Veteran appeal the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 decision the Court set aside and remanded the January 2019 Board decision that denied the Veteran’s claim of service connection for a cervical spine disorder. The Service Connection Claim The Veteran seeks service connection for a current cervical spine disorder which he says began during active duty service and relates back to his heavy lifting during service as a meat cutter. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to current disabilities, the record shows the Veteran being diagnosed with cervical spine degenerative joint disease status post fusion. See, e.g., VA examination dated in October 2007; Dr. Michael Woo letters dated in June 2011 and October 2013. Next, the Board notes that while the Veteran’s service medical records are negative for an injury, history, complaints, diagnoses, or treatment for a cervical spine disorder, his DD 214 list’s his occupational specialty as Meat Cutter. Moreover, the Board finds that the Veteran is both competent and credible to report on events in-service like lifting in excess of 300 lbs. of beef 20-40 times per day as part of his duties in the service and observable symptomatology like having neck pain since carryout his duties. See Davidson, supra. Likewise, the Board finds that the Veteran’s former co-worker, his former spouse, and a family friend in their statements are competent and credible to report on what they observed such as the appellant heavy lifting as a Meat Cutter during service and his subsequent showing signs of neck pain. Id. Given this record, and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that he had a cervical spine injury while on active duty. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See also Gilbert, supra. Lastly, as to a relationship between the Veteran’s post-service cervical spine disorder and the injury while on active duty, the June 2007 VA examiner opined that it was not related to his military service. On the other hand, Dr. Woo in June 2011 and February 2015 statements opined that the Veteran’s post-service cervical spine disorder is due to his military service. In this regard, and as noted in the August 2020 Court decision, while the June 2007 VA examiner’s opinion was based on a review of the record on appeal and an examination of the Veteran Dr. Woo’s opinions were based on his experience treating the Veteran for at least 12 years. Moreover, and as also noted in the August 2020 Court decision, both the VA examiner and Dr. Woo post-service neck injury and surgeries. Additionally, and as discussed above, the Board finds that with granting the Veteran the benefit of any doubt in this matter he had a cervical spine injury while on active duty. Given this record, the Board finds that the evidence, both positive and negative, as to whether the Veteran’s post-service cervical spine disorder is due to his military service is at least in equipoise. Under these circumstances, and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that it did. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See also Gilbert, supra. (Continued on the next page)   Therefore, the Board finds that the criteria for granting service connection for a cervical spine disorder have been met and service connection is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.