Citation Nr: 22012261 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-25 344 DATE: March 3, 2022 ORDER Entitlement to service connection for a cervical spine disability, to include degenerative arthritis and bulging cervical disc without herniation, is granted. Entitlement to service connection for cervical radiculitis of the left upper extremity is granted. Entitlement to service connection for cervical radiculitis of the right upper extremity is granted. Entitlement to service connection for headaches is granted. FINDINGS OF FACT 1. The Veteran's cervical spine disability, to include degenerative arthritis and bulging cervical disc without herniation, is etiologically related to service. 2. The Veteran's cervical radiculitis of the left upper extremity was caused by his service-connected cervical spine disability. 3. The Veteran's cervical radiculitis of the right upper extremity was caused by his service-connected cervical spine disability. 4. The Veteran's headaches were caused by his service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for secondary service connection for cervical radiculitis of the left upper extremity are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for secondary service connection for cervical radiculitis of the right upper extremity are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for secondary service connection for headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from March 1972 to April 1975. These matters come before the Board of Veterans' Appeals (Board) from an April 2015 rating decision, by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at a February 2022 hearing held before the undersigned via videoconference. This decision is being rendered prior to the production of a transcript of that hearing; as the decision below is fully favorable, the Veteran is not prejudiced. A transcript will be associated with the claims file at a later date. Consistent with the Veteran's allegations, the issues on appeal are recharacterized and broadened to reflect all of the symptoms and manifestations associated with the Veteran's claimed cervical spine disability. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed condition, with a presumptive period of one year following separation from service. Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he is entitled to service connection for a cervical spine disability. He asserts that in 1972, while in basic training, he fell off a second level bunk bed. The Veteran noted that he landed upon a fellow servicemember who got off on the wrong side, and then consequently onto a hard tile floor. Essentially, he was flipped over and landed on his upper back. He stated that since that in-service injury, he has continued to experience chronic radiating neck pain and headaches. At the February 2022 Board hearing, the Veteran testified that he did not specifically seek treatment for his neck pain at the time of the injury but nonetheless experienced soreness and headaches through the completion of his training. The Board notes that the occurrence of this event has been previously established; the Veteran is service-connected for a low back disability stemming from it. Within a year of his separation from active service, the Veteran was admitted to the emergency department due to reports of worsening daily occipital and cervical headaches, as well as weakness and dizzy spells, which were originally endorsed six months prior. Upon physical examination, the Veteran exhibited tenderness in the right cervical strap muscles and right sternocleidomastoid muscles. An x-ray showed hypertrophic degenerative changes of the thoracic spine. Subsequent VA and private treatment records document diagnoses of spinal fusion, cervical radiculitis, and bulging cervical disc without herniation. Treatment notes dated January and February 2003 document complaints of paresthesias in the left upper extremity along the C6 dermatome, including weakness, tingling, numbness, and pain. Thereafter in May 2005, the Veteran was diagnosed with degenerative disc disease of the cervical spine with radiculopathy of the bilateral upper extremities. The Board notes that treatment notes from this date reflect that the Veteran reported pain at the base of the neck that extended up to the base of the skull, which caused headaches. The record reflects that the Veteran's treating physician submitted a series of letters on behalf of the Veteran dated July 2014, September 2016, and July 2018. The physician referenced the Veteran's in-service injury in April 1972 when the Veteran fell out of his bunk bed, and that he treated the Veteran during his 1976 hospitalization for headaches associated with his neck issues. The physician opined that the Veteran's cervical spine disability is the direct result of his injury in 1972. The physician noted that the Veteran has no other known risk factors that could have precipitated the disability. The physician opined that the injury sustained from the fall began the deterioration in his neck and the subsequent problems are a consequence of that injury. The Board finds that the opinion is entitled to probative weight, as the opinion considered and addressed the Veteran's lay statements, was based on the Veteran's treatment history, and provided a sufficient supporting rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the opinion is of high probative value. Further, there are no competent, probative opinions to the contrary. To the extent that a March 2015 VA examiner rendered a negative nexus opinion for the claimed cervical spine disability, the VA examiner indicated that she was unable to proffer an opinion without resorting to mere speculation. Therefore, no probative weight may be assigned to the opinion of the March 2015 VA examiner. Therefore, the record reflects competent and credible evidence of an injury in service, a continuity of neck pain since that time, and a current disability. Service connection for a cervical spine disability must be granted. The evidence further reflects consistent reports of headaches and radiculopathy of the bilateral upper extremities and documented diagnoses of such as due to the Veteran's cervical spine disability. Service connection for headaches and for radiculopathy of the bilateral upper extremities are therefore also warranted on a secondary basis. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.