Citation Nr: 21029092 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-35 826 DATE: May 12, 2021 ORDER Entitlement to service connection for a cervical spine disability, including compacted spine and degenerative disc disease (DDD), is granted. FINDING OF FACT The Veteran has a current diagnosis of arthritis of the cervical spine, DDD, and has competently and credibly shown an injury in service and continuity of symptomatology. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the cervical spine, DDD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1964 to September 1983. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2021 Board decision, the matter was remanded for a new examination that considers lay evidence and evaluate the continuity of symptoms. That development is complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Cervical Spine disability, including compacted spine and DDD The Veteran contends that his cervical spine disability is related to service. More specifically, he stated that he injured his cervical spine when he fell on some ice while carrying a control valve in an aircraft bay during service and has had neck pain since. See July 2015 VA Neck Conditions (Cervical Spine) Disability Benefits Questionnaire (DBQ), pg.2. Service Connection Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Here, the Board notes that the Veteran's diagnosis of cervical spine DDD, arthritis, is listed as a chronic disease under 38 C.F.R. § 3.309(a). Service connection may also be established when the evidence shows that a Veteran had a chronic condition in service or during the applicable presumptive period. 38 C.F.R. § 3.303(b). Arthritis may be presumed to have been incurred or aggravated during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § § §3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely if unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The record reflects a finding of cervical spine arthritis, DDD; therefore, a current disability has been established. Regarding an in-service incurrence, the Veteran reported he was involved in a slip and fall accident while in the service in April 1981. The Veteran's Service Treatment Records (STR), show that he was treated for a left rhomboid scapular muscle pain in June 1981, and was treated for pain in the left shoulder and back area. Lay statements from the Veteran and buddies indicate that the Veteran fell and injured his neck and back while service in Iceland at which time had neck and back pain. See K.D.C. Lay Statement dated June 24, 2011; see also C.E. Lay Statement dated July 5, 2011. During a Decision Review Officer Hearing, the Veteran testified about a fall during service, including his treatment. Specifically, he reported that he had neck pain after the incident and was placed on light duty for several days and was given Motrin. See October 2014 Decision Review Officer Hearing, pg. 4. The Veteran's statements about the mechanism of the injury (slip and fall) are consistent, as his account of the mechanism of the incident which has remained unchanged during the pendency of his claim. The Board finds that it is also consistent with the places, types, and circumstances of his service. The Board resolves reasonable doubt in favor of the Veteran to find that the in-service element is met due to the in-service spine injury and report of symptoms during service. Regarding the last element of service connection, weighing against the claim is a March 2021 negative VA examiner's opinion that the Veteran's neck disability is less likely than not related to service. The examiner reasoned that the Veteran's separation examination was normal, and the Veteran was not treated for neck pain until 2002. The examiner noted that although the Veteran indicated on separation that he had back pain, the examiner determined it reflected low back pain rather than upper back pain. See March 2021 VA Opinion, pg. 2. Regarding the examiner's comment regarding continuity of symptoms, the Board notes that lay evidence cannot be deemed non-credible merely if unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1336-37. And, the examiner noted some evidence of continuity of symptoms. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Veteran is competent to report symptoms of back pain as pain is perceived through the senses. Even so, a lack of contemporaneous medical evidence can be considered and weighed against lay statements; medical records document complaints in September 2002. However, weighing in favor of the claim are consistent and competent lay statements, evidenced by objective medical records, that he has had a continuity of symptoms of neck pain since service. See STR January 2, 1981; STR April 20, 1981; STR May 21, 1981; STR June 3, 1981; STR July 25, 1983; see also VA Treatment Record (CAPRI) September 2002; CAPRI September 19, 2006; CAPRI November 11, 2006; CAPRI October 2008; see also K.D.C. Lay Statement June 24, 2011; C.E. Lay Statement July 5, 2011; see also October 2014 Decision Review Officer Hearing, pg. 4. The Veteran also submitted a private opinion which stated that given his history of working with jet engines in service, it is probable that most of his problems are related to his job while in service. See Dr. B.P.S., dated April 26, 2011. Taken together, the medical and lay evidence, the Board finds the evidence weighing in favor of a finding that the onset and continuity of symptoms since service and April 2011 private opinion to be at least in equipoise with the March 2021 VA examiner's negative nexus opinion. As such, the doctrine of reasonable doubt is for application, and the Board finds that service connection is warranted for the Veteran's claimed for back condition. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.