Citation Nr: 22005286 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 17-24 404 DATE: February 1, 2022 ORDER Entitlement to service connection for a cervical spine disability, to include degenerative disease and uncovertebral hypertrophy at C7-T1, is granted. Entitlement to service connection for sleep phase disorder is dismissed. FINDINGS OF FACT 1. The Veteran's cervical spine disability, to include degenerative disease and uncovertebral hypertrophy at C7-T1, had its onset in service. 2. Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of her appeal for entitlement to service connection for sleep phase disorder disability was requested. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability, including degenerative disease and uncovertebral hypertrophy at C7-T1, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to service connection for sleep phase disorder have been met. 38 U.S.C. § 7105 (b) (2), (d) (5) (2012); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2009 to June 2011 and October 2011 to February 2013. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. The Board notes that since the issuance of the March 2017 Statement of the Case additional records were added to the claims file. At the January 2021 Board Hearing, the Veteran and his representative waived RO review of all medical and other evidence of record that was associated with the file since the last decision issued. Therfore, the Board may proceed with appellate consideration of the claims. Now the matters before the Board Service Connection for a Cervical Spine Disability Laws and Regulations A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. Under 38 C.F.R. § 3.310 (a), service connection may be granted for a disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In relevant part, 38 U.S.C. § 1154 (a) requires the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. Facts and Analysis The Veteran seeks entitlement to service connection for a cervical spine disability, to include uncovertebral hypertrophy at C7-T1. The evidence of record shows the Veteran's current cervical spine diagnoses, including cervical strain, degenerative disease, and uncovertebral hypertrophy at C7-T1 without significant canal or neural foraminal compromise. See e.g., March 3, 2015 Boston VA Medical Center (MC), MRI report; July 2015 VA neck Disability Benefits Questionnaire (DBQ) medical opinion. Thus, the first Shedden element for service connection is met. The Veteran testified that her neck pain is related to rough flight landings while deployed downrange. She specifically recalled having whiplash after hitting her head against the bulkhead because "the bird had a bent frame" but the mission needed to be completed. See January 2021 Board Hearing Transcript, at 4. The Veteran also reported getting "sucker punched" in the back of the head trying to drive an intoxicated airmen home during a celebratory event shortly after returning from deployment. Id., at 5. Significantly, she reported a dull, achy, overused sort of neck pain with muscle spasms that have continued to date and are triggered and/or aggravated by service connected migraines and trigeminal neuralgia. Id., at 4. The Board finds the Veteran competent and credible to provide the history of her neck injuries in service and the continuous symptoms since the injury. Therefore, the second Shedden element is also met. Thus, the question that remains before the Board is whether the Veteran's current cervical spine disability was caused by her military service. In February 2011, service treatment records (STRs) show during the course of treatment for sinus/facial pain and symptoms, the Veteran reported a punch to the head at a party in December 2010. See February 3, 2011 STR. She reported waking up with a headache but could not remember the details of the event, which led to an evaluation for post-concussive syndrome. Id. Again, in December 2012, the Veteran reported a history of neck stiffness and headaches while receiving civilian specialty care for facial pain. See December 6, 2012 Brigham & Women's Hospital medical treatment record. Review of the Veteran's medical treatment records following discharge from active service show continued reports of neck pain. During a March 2013 Air Force Reserve Periodic Health Assessment, the Veteran reported neck pain was something that bothered her off and on or persisted for a long time. She further indicated cervicalgia and headaches were changes in her medical condition for which she was undergoing physical therapy. See March 2013 Reserve Command Flight Medicine Record. The Veteran's VA pain management specialist Dr. F. S. has provided multiple favorable nexus statements that link the Veteran's cervical spine disability to service, as well as to clarify and explain the complexities of the disability, as it includes referral of migraine and trigeminal pain into the cervical spine. See Boston Medical Center (MC) treatment records, dated January 3, 2017, February 27, 2017, March 17, 2017, April 2017, December 22, 2020. Significantly, Dr. F. S. opined that the Veteran's cervical facet disease and neck pain is due to repetitive hard landings and a service related injury in 2010. See Boston VAMC medical treatment records dated February 27, 2017 and December 22, 2020 Boston. The Veteran's long-term physician offered the opinion based on physical examination, evaluation of medical evidence that included the Veteran's MRI findings, and with consideration of the Veteran's medical history. Thus, the Board finds the opinions of Dr. F. S. are competent and credible evidence and assigns probative weight. In July 2015 and February 2017 VA medical examiners found the Veteran's neck disability was not proximately due to or the result of his migraine headaches or trigeminal neuralgia. The July 2015 examiner found the cervicalgia was the consequence of mild degenerative disease and overuse activity, while the February 2017 noted that the Veteran had spasms of the cervical paraspinal muscles that would be a result of cervical spine strain. Although the examiners reviewed the Veteran's medical records and performed in-person examinations, they did not discuss the aggravation aspect of secondary service connection. Further, direct service connection for the cervical spine disability was not addressed by either examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013). Thus, the Board finds the July 2015 and February 2017 medical opinions inadequate and assigns less probative weight. Based on above, the Board finds that the Veteran's cervical spine disability had its onset in service. Accordingly, entitlement to service connection for a cervical spine disability, to include degenerative disease and uncovertebral hypertrophy at C7-T1, is warranted. 38 U.S.C. §§ 1110 , 5107; 38 C.F.R. §§ 3.102, 3.303. The Board now turns to the Veteran's claim of entitlement to service connection for her neck disability as secondary to service connected migraine headaches and/or trigeminal neuralgia. As the Board is granting service connection based on a direct theory of entitlement, the additional theory of secondary service connection is now rendered moot because there remain no questions of law or fact as to the fully granted issue. Consequently, the second service connection theory will not be further discussed. See 38 U.S.C. § 7104. Withdrawal of Service Connection Claim for Sleep Phase Disorder In the present case, the Veteran and her authorized representative indicated at the Veteran's January 2021 Board hearing that the Veteran wished to withdraw her appeal as to the issue of entitlement to service connection for sleep phase disorder. As noted, the transcript of that hearing is included in the evidentiary claims file. The claimant or the claimant's representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204 (b)(1). A withdrawal is effective when received, provided that the receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204 (b)(3). It constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204 (c). The Veteran's request to withdraw the service connection claim for sleep phase disorder was received prior to the Board's decision. Thus, the Board finds the Veteran has withdrawn her appeal as to this issue. As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.