Citation Nr: 21029422 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 07-01 459 DATE: May 13, 2021 ORDER Service connection for a cervical spine disability beyond that of cervical strain, diagnosed to include arthritis, is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, he injured his cervical spine during service, has experienced cervical spine symptoms continuously since separation from service, and has been diagnosed with arthritis of the cervical spine that has not been adequately attributed to any intercurrent post-service injury. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability beyond that of cervical strain, diagnosed as arthritis, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to February 1974 and from January 1976 to April 1979. In January 2013, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board). A transcript of the hearing has been associated with the claims file. In April 2019, the Board denied the Veteran's claim of entitlement to service connection for a cervical spine disability beyond that of cervical strain, including degenerative disc disease, cervical radiculopathy, and arthritis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a March 2020 Joint Motion for Remand (JMR) filed by the parties and an April 2020 Court Order, the Court has remanded the claim back to the Board. In July 2020, and again in December 2020, the Board remanded the issue to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. Entitlement to service connection for a cervical spine disability beyond that of cervical strain, diagnosed to include arthritis. Service connection means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also 38 C.F.R. § 3.303 (a). For the VA-defined chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service - no matter how remote - will be entitled to service connection without having to satisfy the medical nexus requirement, unless clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1338. If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this relaxed evidentiary provision. Id.; Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for VA-defined chronic diseases, including arthritis, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that his current cervical spine disability, beyond that of cervical strain, including degenerative disc disease, cervical radiculopathy, and arthritis, is/are related to his April 1978 in-service accident, in that during his January 2013Board hearing, he reported that his August 1987 post-service work-related injury might have aggravated his cervical spine disability, but it did not "do the damage, the damage was already done" in the April 1978 in-service accident, as he always had tingling in his hands, that he had a bad headache that tingled down his arms and fingers, and that he had trouble holding on to things. The Veteran has been service-connected for cervical strain since September 1981. The Veteran's service treatment records dated in April 1978 indicate that he was involved in a motor vehicle accident and presented with tenderness over the entire cervical spine; he was treated further for cervical strain. During an August 1980 VA examination, the Veteran complained of neck stiffness and was diagnosed with neck strain; X-ray examination of the cervical spine was normal. During a July 1982 VA examination, the Veteran complained of neck pain and stiffness; X-ray examination of the cervical spine revealed some loss of normal curvature, it was otherwise normal. Private treatment records dated in August 1987 indicate that the Veteran was struck behind the left ear by a piece of equipment, diagnosed as a whiplash injury of the neck, with severe headaches and interscapular pain, and radiating left upper extremity symptoms; myelogram showed herniated disks. In September 1988, he underwent private surgical treatment, anterior cervical fusion of C6-7 with excision of herniated disc. In a November 1988 letter, the Veteran's private physician reported that he had treated the Veteran since October 1988 for a cervical condition as a result of an industrial injury on August 5, 1987. On VA examination in March 1989, conducted to evaluate complaints of low back pain, the Veteran reported his in-service injury to the back, neck, and shoulders, with problems with his back since the injury. He reported a history of a herniated cervical disk following an industrial injury, requiring surgery. He complained of neck stiffness. X-ray examination of the cervical spine revealed well-developed osteophyte formation in the lower cervical spine, most marked in C-6 and C-7, with some loss of disc space and slightly widened prevertebral soft tissue space; no other bony radiopathology was seen. He was diagnosed with, in pertinent part, beyond that of diagnoses related to the lumbar spine, status-post anterior C6, C7, cervical fusion and status-post cervical laminectomy as a result of the job-related injury. VA treatment records dated in April 2002 indicate that the Veteran reported his in-service injury, with neck pain, and his post-service industrial injury with surgery for herniated discs. During VA treatment in September 2003, the Veteran reported that he injured his neck in the same in-service injury wherein he injured his shoulder and was told that he had a neck bruise, and seven years later, he was diagnosed with cervical spine herniated discs, with constant pain. The Veteran also reported that he was status-post fusion from a 1988 industrial injury. He was diagnosed with cervical spine degenerative joint disease, status-post cervical fusion. In an October 2003 statement, one of the Veteran's physicians opined that the Veteran's cervical spine fusion is more likely the cause of his decreased range of motion. He noted that there was no other evidence in the claims file that the Veteran suffered from any neck disability until his industrial accident in 1987, after which he had cervical spine fusion which would lead to significantly decreased range of motion. He reported that the Veteran had full range of motion during the 1980 VA examination and X-ray examination in 1982 was normal save for some loss of normal curvature in the cervical spine which usually results from musculoskeletal spasm. In a March 2009 statement, a physician reported that the Veteran had cervical strain, cervical radiculopathy, and cervical degenerative disc disease, and reported that he had an in-service injury during which he fell from the top of a vehicle and landed on his buttock, shoulder, and back. He reported that the Veteran's cervical strain was a result of that injury, that he underwent cervical fusion in 1988 as a result of that injury, and that he had cervical radiculopathy and had to undergo cervical fusion in 1988. He concluded that the Veteran's cervical strain, cervical radiculopathy, and cervical degenerative disc disease were direct results of the in-service injury. In a November 2009 statement, the Veteran's former spouse reported that during the Veteran's in-service injury, she met him on the airfield and saw that his left arm was taped to his body and his neck was in a brace. In a January 2010 statement, one of the Veteran's former fellow service members reported that he was stationed with Veteran on the field during his injury and that he was aware that the Veteran had incurred a bad neck injury and other service members were charged with taking care of him, taking him to shower and to get meals. During his January 2013 Board hearing, the Veteran described his in-service injury and reported that when he woke up in the hospital, he was in a neck brace. On VA examination in June 2016, the Veteran was diagnosed with cervical strain, herniated discs, and degenerative arthritis. The Veteran reported that he was a track commander and was involved in an accident wherein he was ejected from a vehicle, hitting the gun mount with his left head, neck, and shoulder. He reported ongoing issues with his neck and shoulder for the remainder of his service and after service, and that in 1988, he underwent comprehensive evaluation revealing disc herniation which required fusion surgery. The examiner opined that the Veteran's cervical spine disease is less likely than not related to his in-service injury. The examiner discussed that X-ray examination of the cervical spine in 1982 did not show evidence of disc herniation, disc disease, or narrowing, and these changes would have been expected as of 1982 if they were related to the in-service injury. The examiner reported that the loss of normal curvature of the neck shown on X-ray examination in 1982 is likely related to the cervical strain, as such resulted from musculoskeletal spasm and would not itself cause the subsequent development of degenerative disc disease or arthritis. The examiner opined that the Veteran's cervical spine disease is more likely than not related to his post-service industrial injury in 1988, as there is no objective evidence of a structural issue with the cervical spine until imaging in 1988. In a November 2018 addendum opinion, based on a physical examination of the Veteran and sought to address the issue of aggravation, a VA examiner diagnosed the Veteran with cervical strain, degenerative arthritis, and herniated discs. The Veteran again reported his in-service and post-service industrial injuries and complained of constant neck pain with radiating symptoms. The examiner opined that the Veteran's cervical spine disease was less likely than not aggravated beyond its natural progression by his service-connected cervical strain. The examiner reasoned that the Veteran had a cervical spine X-ray examination in 1982, silent for any herniation of discs, and he had his industrial accident five years later, with computed tomography (CT) in 1988 showing disc herniation severe enough to warrant surgery. The examiner noted that the neurosurgeon, in April 1982, asserted that the Veteran's herniation was due to the industrial accident. The examiner continued that cervical strain is due to muscles in the neck and the Veteran's industrial accident did damage to the cervical spine, not aggravated by the cervical muscle strain and concluded that the evidence showed that the Veteran was involved in an industrial accident that did damage to his cervical spine resulting in the need for cervical spine surgery. In a September 2020 addendum opinion, the examiner noted the Veteran's in-service and post-service injuries, specifically, that the treatment records indicate, as discussed above, that his herniated disc was due to his industrial accident. The Veteran reported a constant ache in the neck, with decreased motion, intermittent sharp pain, radiation of pain to the upper extremities with numbness in the fingers. The examiner cited the Veteran's pertinent medical history as described above beginning the with the July 1982 VA examination that includes results of X-ray examination within normal limits. The examiner opined that the Veteran's post-service industrial injury damaged his cervical spine and his current disability examined at that time was not aggravated by his service-connected cervical spine strain; the examiner concluded that the Veteran's continued complaints of neck pain are at least as likely as not related to his post-service condition and age-related changed. The examiner reasoned that the post-service industrial injury did damage to the spine that resulted in the need for surgery and that there were no in-service findings of fracture, dislocation, bone, or joint disease. In December 2020, the Board sought an etiological opinion that specifically addressed the pertinent lay and medical history, specifically, the Veteran's complaints of cervical spine symptoms prior to his post-service industrial injury, recorded during instances of treatment and/or examination, and the statements of record from his former spouse and fellow service member describing his in-service neck symptoms. The Board directed the examiner to consider and discuss the specific evidence cited and opine fully as to whether the Veteran's cervical spine disability was related to his in-service motor vehicle accident, whether such, including arthritis, has existed continuously since separation from service, considering the symptoms thereof, or was manifest to a compensable degree within one year of separation from service, and whether his disability was secondary to his service-connected cervical spine strain. In a January 2021 addendum, the VA examiner did not appear to consider, and did not discuss the lay and medical history cited by the Board. The examiner opined that the Veteran's cervical strain was related to the in-service motor vehicle accident, as his radiology reports revealed loss of spine curvature indicating chronic muscle spasm, and that such became aggravated by his post-service industrial injury, causing his current pain, an inquiry not posed by the Board. The examiner discussed again the medical evidence indicating severe enough disc herniation resultant to the Veteran's post-service industrial injury to warrant surgery, noted by neurosurgery to be related to the injury, and the lack of herniated discs on X-ray examination in July 1982. The examiner opined that the Veteran's disability was less likely than not aggravated beyond its normal progression by his service-connected cervical strain. The Veteran is competent to report his in-service experiences and in-service and post-service symptoms. His former spouse and his former fellow service member are competent to report as to what they witnessed of the Veteran's condition. There is no evidence that they are not credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The lay statements describing in-service cervical spine symptoms, coincident to the Veteran's in-service motor vehicle accident are bolstered by the April 1978 service treatment records demonstrating tenderness over the entire cervical spine, with further treatment for the same. The lay statements of post-service cervical spine symptoms, prior to his August 1987 post-service industrial injury, are bolstered by the August 1980 and VA examination reports demonstrating his complaints of neck stiffness and diagnosed strain. He has offered competent and credible lay statements, including during his January 2013 Board hearing, that he had head pain that tingled into this arms and fingers and had difficulty holding on to things. Id. There is not sufficient evidence that the Veteran's cervical spine disability beyond that of cervical spine strain, a disability which has been diagnosed to include arthritis, is due to an intercurrent injury such that the regulatory provisions applying to chronic disabilities and service connection would not apply. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 133. While the Board sought etiological opinions from VA examiners in its July 2020 and December 2020 remands, opinions that adequately considered and discussed the pertinent lay and medical history, specifically, the Veteran's complaints of cervical spine symptoms prior to his post-service industrial injury, recorded during instances of treatment and/or examination, and the statements of record from his former spouse and fellow service member describing his in-service neck symptoms; it does not appear that any VA examiner has done so. Thus, the opinions of the VA examiners have little probative value. Based on the forgoing, there is probative evidence of a current cervical spine disability, beyond that of cervical spine strain, diagnosed to include arthritis, probative evidence of an in-service motor vehicle accidence and resultant complaints and treatment for cervical spine symptoms, and, resolving all doubt in favor of the Veteran, cervical spine symptoms, diagnosed to include arthritis, from the time of separation from service to the present that have not been adequately attributed to any intercurrent post-service injury. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. § 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for a cervical spine disability beyond that of cervical strain, diagnosed to include arthritis, is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.