Citation Nr: 21032321 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-48 632 DATE: May 26, 2021 ORDER Entitlement to service connection for cervical spondylosis is granted. FINDING OF FACT The onset of the Veteran's cervical spine disability, to include disc disease, disc herniation, radiculopathy and spondylosis, cannot be satisfactorily disassociated from his active duty service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for entitlement to service connection for a cervical spine disability, to include disc disease, disc herniation, radiculopathy and spondylosis, have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from August 2002 to November 2015. This matter initially came before the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) July 2016 Regional Office (RO) rating decision which, inter alia, denied service connection for cervical spine strain. The Veteran continued to submit evidence in support of his claim and the RO continued to deny the claim in November 2016 and April 2017 rating decisions. In a September 2018 statement, the Veteran reported that he did not receive his Statement of the Case (SOC). The Veteran timely filed a notice of disagreement (NOD) in June 2017. In October 2018, the Veteran filed his substantive appeal. In the February 2019 Supplemental SOC (SSOC), the RO explained that although the Veteran did not meet the timeline requirements for his substantive appeal, the VA continued to provide him with notifications that his claim was still pending a valid appeal; therefore, the claim was continued. In May 2021, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge (VLJ). The transcript from the hearing has not yet been associated with the file, as the appeal is being processed under the Board's "One Touch" program." Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Although entitlement to service connection on the presumptive basis noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Entitlement to service connection for a cervical spine disability The Veteran contends that his diagnosed cervical spine disability, manifested by disc disease, disc herniation, radiculopathy and spondylosis, is due to disease or injury in service. Specifically, he reports that his cervical spine disability is due to the ergonomics of his workplace during the years of 2003 to 2011. His military personnel records confirm that he was required to do a large amount of administrative work, trainings, classroom study sessions, and community outreach. However, service treatment records (STRs) do not document a diagnosis of a cervical spine disability. Three months following separation, in February 2016, radiology imaging confirmed moderately large central and left para median disc protrusion extending below the level of the interspace at the C6-C7 level with left-sided neural foraminal narrowing; and, some changes of the cervical spondylosis at the C3-4 and C4-5 levels. In March 2016 private medical treatment records reflect that the Veteran was seen for upper back/cervical spine problems. Cervical disc disease, cervical radiculopathy, cervical spondylosis, and neck pain were listed as diagnoses discussed during his visit. A June 2016 VA examination report reflects that the Veteran had a diagnosis of cervical strain and cervical radiculopathy. He reported that the date of onset of the symptoms was in 2010 and that the condition began while he was stationed in Maryland. He reported that he started getting headaches with numbness in left hand, fingers, and forearm. The examiner noted that imaging studies were performed and there were significant findings. However, he reported that the cervical vertebrae were unremarkable, the zygapophyseal joints were normal, and the cervical spine was not altered. Notably, the examiner did not review any records, including the March 2016 private medical treatment records with associated imaging reports. In September 2016, the Veteran reported that he had civilian radiology imaging done in February 2016 because his civilian primary care thought it was odd that the military never did radiology of his neck due to his symptoms he has been having for years. He reported that radiology revealed that there is one herniated disc and three bulging discs in his neck that may have been affecting the quality of his life for over three years. In October 2016, the Veteran was seen for neck pain with a history of bulging disc C6 and herniated C3-5. An X-ray was requested. In his June 2017 NOD, the Veteran reported that during the visits with VA, it was discovered that his neck injury is due to the ergonomics of his workplace during the years of 2003-2011. He reported that the specific cervical herniation was caused by the long hours on shift work for over eight years. VA treatment records reflect that in February 2017, radiology of the cervical spine revealed lower cervical spine herniation of the nucleus pulposus (HNP) and the Veteran was referred for surgery. VA treatment records also reflect continued complaint of neck pain and a diagnosis of cervical spondylosis. Upon review of the evidence of record, service connection for cervical spondylosis is warranted. Initially, as noted above, the Veteran has a current diagnosis as documented by radiology and the medical treatment evidence of record. Thus, the dispositive issue is whether his diagnosis is related to disease or injury in service. The Veteran is competent to report continuous neck pain symptoms since separation from service. Jandreauv. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a Veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service). The Veteran's statements in regard to continuous neck pain symptoms are therefore competent, and there is no reason to doubt his credibility in that regard. There is lay evidence suggesting a nexus between the current neck spondylosis and service, specifically, lay testimony of some continuity of neck pain symptomatology. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence"). As noted above, in his June 2017 NOD, the Veteran explained that his neck pain began due to his work in the military. The Veteran's statements are consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, the in-service injury requirement has been established. Notably, he did not report any intervening post-service injury before his diagnosis in February 2016. Most notably, however, is the objective radiographic evidence of disability just three months after service separation. Given the nature of the disability, it is reasonable to infer in-service onset based on the timing in this case. Thus, there is competent, credible lay evidence of a current cervical spine disability that had its onset in service with objective findings to support those assertions dated just three months following service discharge. To the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan, 451 F.3d.at 1335. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a cervical spine disability, to include disc disease, disc herniation, radiculopathy, and spondylosis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.