Citation Nr: 21030396 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-26 987 DATE: May 18, 2021 ORDER Service connection for the Veteran's cervical spine disability, as currently diagnosed, is granted. FINDING OF FACT It is at least as likely as not that the Veteran's cervical spine disability, currently diagnosed as degenerative arthritis, began in, and has continued since, service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability, as currently diagnosed, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 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 from October 1973 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision. The Veteran testified at a Board hearing in August 2018. In October 2019, the Board remanded this matter for additional development. Service connection for the Veteran's cervical spine disability, as currently diagnosed, is granted. The Veteran seeks service connection for a cervical spine disability. A June 2013 VA examination report shows a diagnosis of chronic cervical spine strain with degenerative changes. See 06/11/2013, VA examination, at 13. The Veteran was involved in a major motor vehicle accident (MVA) during service. He is service-connected for a low back disability based on that accident. See 06/12/2013, Rating Decision. The Veteran asserts that his current neck disability is also due to the in-service MVA. Alternatively, he asserts that his neck disability is secondary to his service-connected low back disability. As noted, the Veteran underwent a VA examination in June 2013. Regarding the onset of neck symptoms, the Veteran stated that he did not recall significant neck complaints in the first 10 years after service, adding that his neck issues probably had started about 20 years earlier. See 06/11/2013, VA examination, at 10. The June 2013 VA examiner opined that it is less likely as not that the Veteran's neck disability was due to his in-service MVA or secondary to (caused or aggravated by) his back injury in service. For his rationale, the examiner indicated that there was no clear objective nexus connecting the MVA in service to the current neck condition. The examiner acknowledged that the Veteran had significant injuries, to include loss of consciousness, due to the MVA. He also acknowledged that whiplash injuries from MVAs can cause problems that do not manifest until years later. Nevertheless, the examiner concluded that the Veteran's neck disability is more likely than not related to his post-service work in construction. In this regard, the examiner noted that service treatment records were silent for neck problems and that, as reported by the Veteran, his neck symptoms did not begin until at least 10 years after separation from service. Regarding secondary service connection, the examiner simply stated that there was no major fracture or deformity of the low back that would likely cause or aggravate the Veteran's neck disability. See 06/11/2013, VA examination, at 23-24. In October 2019, the Board determined that the June 2013 VA opinion was inadequate and remanded for a new VA examination. A March 2021 VA examination shows a diagnosis of moderate to severe degenerative arthritis of the cervical spine, per recent radiographs. The VA examiner opined that the Veteran's disability is less likely than not related to service or secondary to a service-connected disability. Regarding direct service connection, the examiner explained service treatment records related to the May 1974 MVA reference a lumbar spine condition, only. Similarly, the Veteran's separation examination is silent regarding neck symptoms or abnormalities. Furthermore, the first documented complaint of neck symptoms is from 1998, more than two decades after service. Regarding the May 1974 MVA, the examiner further indicated that, based on the documented details of the MVA, it was not possible to ascertain the mechanism of injury and/or magnitude of force. Regarding the Veteran's statement that, following the May 1974 MVA, he experienced neck symptoms that were overlooked at the time by treatment providers, the examiner explained that it is reasonable to expect that any head or neck injuries would been noted at the time, as the standard of care for the evaluation of MVA victims, particularly those that have been thrown from the vehicle, include an evaluation of the entire spine, including head and neck. Regarding secondary service connection, the examiner explained that there was no evidence of chronically impaired gait or chronically altered lumbar biomechanics to support findings of causation or aggravation, and, therefore, a reasonable pathophysiologic nexus could not be established. The examiner also indicated that occupational risks associated with the Veteran's post-service construction/HVAC work "raise reasonable doubt as to causality." The examiner further noted that the Veteran's separation examination references a head injury in high school, adding that "[w]hile details are not available, this history must be considered as potential causative factors including a head injury in high school and a 'back injury in car accident 4-5 years ago". The Board appreciates the March 2021 VA opinion but once again finds that the adequacy of the opinion is undermined by the examiner's use of legal terms (e.g., reasonable doubt) that ultimately create confusion about the evidentiary standard being applied. As such, the VA opinion has diminished probative value. VA treatment records show varying accounts regarding the onset of neck symptoms. While a January 2010 VA treatment note references a history of cervical pain "for over 20 years," an August 2012 rehab services evaluation indicates that the Veteran has had chronic neck pain since a 1970s MVA. 09/28/2012, Medical Treatment Record - Government Facility, at 22 & 25. The Board finds that the evidence is in relative equipoise as to whether the Veteran's cervical spine disability is related to service. More specifically, the competent and credible evidence of record supports a finding that the Veteran's cervical spine disability is at least as likely as not related to service. As discussed above, the Veteran was involved in a serious MVA during service and has indicated that he developed neck symptoms due to that MVA. There is also some indication that the he has continued to experience neck symptoms ever since that MVA. The Veteran is competent to report any observable symptoms and any such reports must be considered. The Board finds no reason to doubt the veracity of these reports. Two VA examiners have considered the question of whether the Veteran's neck disability is related to his in-service MVA. While these VA examiners have issued unfavorable opinions, both opinions implicitly suggest that it is plausible that the Veteran's current neck disability is related to his in-service MVA. These examiners have concluded that the probability of a nexus is less than 50 percent. The Board, however, disagrees, especially considering the Veteran's history of symptoms since service. Additionally, with the Veteran's competent and credible statements of continuing neck symptomatology and the fact that he has been diagnosed with degenerative changes of the cervical spine, the Board finds that requirement for continuity of a chronic disease have been met. 38 C.F.R. §§ 3.303(b), 3.309(a). (Continued on the next page) Resolving doubt in favor of the Veteran, the Board finds that his current neck disability, as current diagnosed, is related to service. 38 U.S.C. § 5107(b). Service connection for degenerative arthritis of the cervical spine is granted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.