Citation Nr: 21031337 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-00 109 DATE: May 21, 2021 ORDER Service connection for cervical spine strain is granted. FINDING OF FACT The Veteran's cervical spine strain is due to a motorcycle accident during active duty. CONCLUSION OF LAW The criteria for service connection for a cervical spine strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Service connection for a cervical spine strain is granted. The Veteran contends that his current cervical spine disability, diagnosed as cervical strain, is due to an in-service neck injury sustained during a motorcycle accident in service. Service connection may be granted for 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). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Initially, the Board notes that the Veteran is a retired Board-licensed emergency room physician of almost 30 years. The Veteran is thus "qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." 38 C.F.R. § 3.159(a)(1). At the August 2020 Board hearing, the Veteran alleged that his neck pain began during service and has gradually worsened since that time. He asserted that it is due to a motorcycle accident during active duty. The Veteran also state that while in medical training in his 20s, not long after service discharge, he had had an x-ray done that showed changes not commensurate with his age. The Veteran reported that he had had no neck injuries after service discharge. He did not get treatment for his neck pain until around 2010. At a November 2017 VA examination, the Veteran also reported that he did not seek medical treatment for his neck after service although his symptoms have been present since 1970. He stated that immediately after the accident, he did not pay attention to the neck pain. The Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A November 2017 VA examination was conducted. The examiner diagnosed cervical spine strain. VA treatment records document cervicalgia. Next, the Board finds that there was an in-service injury, but no treatment or diagnosis of a neck injury or complaints. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran asserted at the Board hearing that he had been in a motorcycle accident during active duty. This is corroborated by the Veteran's service treatment records (STRs). STRs show that after an October 1970 motorcycle accident, the Veteran was hospitalized with a right shoulder separation, fracture of the right 6th through the 9th ribs, a comminuted fracture of the right femur, and a fractured mandible or jaw. In February 1971, a Medical Board Report noted that the Veteran had received the maximum benefits of hospitalization, but was not ready for full duty. He was to be on limited duty for at least 6 months, with the use of a cane or crutches for walking. In an August 1971 Report of Medical Board, it was noted that since his enlistment was up, the Veteran was going to be referred to a Physical Evaluation Board. In October 1971, he was sent home to await the results of the PEB. The Veteran's DD-214 reflects that the reason for his honorable discharge was physical disability. At the August 2020 Board hearing, the Veteran reported in-service symptoms that were not significant directly after, but which continued. The Board finds this lay evidence of in-service neck symptoms competent as it is capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge).Additionally, the Board finds this lay evidence credible based on the Veteran's demeanor at the hearing and the likelihood that neck pain would not be reported in the context of serious injuries such as rib fractures and a comminuted femur fracture. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by demeanor, a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Finally, the Board finds that the evidence of record supports a finding that the cervical strain is related to the motorcycle accident during active service. There are no medical records regarding the Veteran's cervical spine until a May 2009 VA treatment record. At that time, the Veteran was seen to establish care. He reported chronic neck pain of 30 years. In an April 2013 VA record, he reported chronic neck pain due to an accident in which he was rear ended. At the August 2020 Board hearing, the Veteran reported At the August 2020 hearing, the Veteran provided an opinion that his current cervical spine strain was due to the accident during active duty, based on the mechanism of the injury and the severe trauma to his body. The Veteran noted his opinion was based in part on whiplash type injury and the x-ray he'd seen in his 20s, which showed boney protuberances or boney bruising from the vertebral bodies which were beyond normal progression for someone of his age at that time. Additionally, the Veteran reported continuing neck symptoms since the accident but that he did not seek VA treatment for his neck pain until 2009 as he did not know it was available to him. As noted above, the Veteran is a retired physician whose testimony is considered competent based on his medical expertise and training. See 38 C.F.R. § 3.159(a)(1). The Board assigns this opinion significant probative value because the Veteran provided a thorough supporting explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Veteran's opinion was also based upon the specific mechanism of injury, x-ray results shortly after service discharge, and his neck symptoms after the motorcycle accident and over time. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the access to the relevant lay and medical evidence and the thoroughness and detail of the opinion). Additionally, this opinion is supported by a February 2020 opinion from the Veteran's treating VA physician. The physician noted a review of the Veteran's STRs and, as the Veteran's VA physician, has knowledge of the current disability. The physician opined that the neck injury from the trauma is most likely caused by or a result of the motorcycle crash during military service. The physician noted that mechanical forces and other injuries from the accident while on active duty, are consistent with the coexisting neck injury and that there is no other apparent cause for this condition and disability. This opinion, while less detailed than the Veteran's opinion, supports the same conclusion and provides a supporting explanation. The Board thus assigns it probative value. See Stefl, 21 Vet. App. at 124; Prejean, 13 Vet. App. at 448-9. The Board notes that a November 2017 VA opinion was provided upon a review of the claims file and examination of the Veteran. The examiner opined that the neck pain was less likely than not incurred in or caused by the in-service injury. In support of that conclusion, the examiner noted that they were unable to identify any objective evidence in the Veteran's STRs documenting continuous medical evaluation, management, or treatment and that review of all the medical records did not reveal any evidence of medical evaluation, imaging studies, and/or treatments since the accident in 1970, and thus nexus cannot be established. The Board finds this opinion lacks probative value; it ignores the Veteran's lay statements of symptoms since the accident and does not address the severe trauma or mechanism of injury of the in-service motorcycle accident. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). Thus, the preponderance of the evidence indicates that the Veteran's cervical spine strain is related to the in-service motorcycle accident. Accordingly, service connection is granted. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.