Citation Nr: 22011561 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 17-35 164 DATE: March 1, 2022 ORDER Entitlement to service connection for degenerative joint and disc disease of the cervical spine is granted. Entitlement to service connection for radiculopathy of the left upper extremity is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his chronic cervical spine disability had its onset in service. 2. The Veteran's cervical spine disability more likely than not caused or contributed to his radiculopathy of the left upper extremity. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for degenerative joint and disc disease of the cervical spine have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for establishing service connection on a secondary basis for radiculopathy of the left upper extremity have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to February 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December of 2020, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. The Board remanded these claims in May 2021 for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. In these latter circumstances, a showing of continuity of symptomatology since service is required in order to support the claim. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A medical examination is inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for degenerative joint and disc disease of the cervical spine The Veteran and his representative affirm that his cervical spine disability originated due to injuries during his active-duty service. The Board notes that VA examinations from May 2014 and September 2021 diagnosed the Veteran with arthritis and disc disease in his cervical spine, respectively. Accordingly, the first element for establishing service connection has been met. During the May 2014 VA examination, the Veteran reported that he began having neck pain in 1973, and he explained that he believed he was evaluated during service. The Veteran reported another occurrence of neck pain in 1974 after physical training. The Veteran also reported that has had recurrent neck pain since service. During the September 2021 VA examination, the Veteran reported that during service, he was doing pull-ups and had neck pain; he also reported that he had additional pain in 1973. The Veteran added that since service he has had recurrent pain. The Veteran noted that his pain has progressively worsened over time. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment records include numerous complaints of neck pain after a vehicular accident, training, and a sports injury. During the December 2020 Board hearing, the Veteran provided sworn testimony and explained the circumstances around his in-service injuries. Additionally, in the Veteran's August 2014 Notice of Disagreement, the Veteran asserted that he hurt his neck in service and that it was continuing to bother him since service. The Veteran also asserted that no other incidents could have caused his cervical spine disability. As the Veteran is competent to report that which he perceives through his symptoms, the Board finds this sworn statement to be competent and credible evidence of what he witnessed first-hand during his active-duty service. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be neck pain that has progressively worsened over time. Layno v. Brown, 6 Vet. App. 465 (1994). Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, giving the Veteran the benefit of the doubt, the second element for establishing service connection has been met. As to the final element of a service connection claim, the nexus between the Veteran's cervical spine disability and the in-service injury, the evidence is mixed. The Veteran was considered competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran was not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's statements that he had neck pain since he was in active service are both competent and credible, however his statements alone are not sufficient to medically attribute his current disability to an injury he experienced in service. The May 2014 VA examiner provided a nexus opinion, noting that on the Veteran's separation examination from October 1974 there was no diagnosis of a chronic neck condition. The examiner added that, after separation, there are no medical records documenting complaints of neck pain until April 2014. The examiner concluded that due to a lack of documentation to support whether the Veteran had a chronic neck disability during his active-duty service, and a lack of medical documentation of a neck disability after separation until 2014, it was unlikely that his current neck disability was related to his military service. The September 2021 VA examiner noted that there was no evidence in the Veteran's service treatment records to show that the Veteran had chronic symptoms in-service or manifested to a compensable degree within one year of his discharge from service. Based on these assertions, the examiner concluded that the current cervical spine disability was less likely than not incurred in or caused by his active-duty service. The Board finds that these medical opinions are insufficient, as these nexus opinion conclusions disregard the Veteran's lay statements of the in-service injury and the reported continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence, and can alternatively establish a relationship between the current disability and injury in service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the competent evidence of record is at least in equipoise. Accordingly, under these circumstances, and granting the Veteran the benefit of the doubt in this matter, the Board finds that service connection for degenerative arthritis and disc disease in the cervical spine is warranted because arthritis and diseases of the nervous system are disabilities that may be presumed service connected based on continuity of symptoms and the Veteran credibly testified to such continuity. Therefore, the Board finds that service connection for degenerative joint and disc disease of the cervical spine is warranted. 2. Entitlement to service connection for radiculopathy of the left upper extremity The Veteran and his representative contend that the Veteran is entitled to service connection for radiculopathy of the left upper extremity as secondary to his newly service-connected cervical spine disability. The first element for secondary service connection is satisfied in that the Veteran was diagnosed with radiculopathy of the left upper extremity, as noted in a VA examination from September 2021. The evidence relating to the final nexus element for secondary service connection is positive. As previously noted, the Veteran was afforded a VA examination in September 2021. The September 2021 VA examiner concluded that the Veteran's cervical disc disease can cause numbness and tingling down arms, which the Board infers as a positive nexus opinion linking the Veteran's radiculopathy of the left upper extremity to his newly service-connected cervical spine disability. The VA examiner's opinion is probative because it was based on a review of the record and contains a clear conclusion with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). The evidence contained in these opinions further support the existence of a nexus between the Veteran's radiculopathy of the left upper extremity and the Veteran's service-connected cervical spine disability. Therefore, the Board finds that the final element for secondary service connection has been met. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.