Citation Nr: 22012436 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 19-01 595 DATE: March 3, 2022 ORDER Entitlement to service connection for a cervical spine disability is granted. FINDING OF FACT The approximate balance of the evidence shows that the appellant's current cervical spine disability is related to an in-service injury in which a piano fell off a truck and hit him in the neck. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Air Force from June 1973 to October 1973 and from September 1974 to September 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to service connection for a neck pain condition. This decision was appealed in a notice of disagreement (NOD) received by VA in May 2017. A Statement of the Case (SOC) was issued by VA in December 2018. VA received the appellant's Substantive Appeal (Form 9) requesting a hearing before a member of the Board in January 2019, perfecting the appeal. The appellant appeared before the undersigned Veterans Law Judge for a tele-hearing in April 2021. A transcript of that hearing has been added to the claims folder and was considered in the adjudication of this appeal. 1. Entitlement to service connection for a cervical spine disability is granted. The appellant contends that service connection is warranted for a current cervical spine disability because it is related to an injury he sustained while he was in active service with the United States Air Force. Specifically, he asserts that he injured his neck following an accident unloading a piano from a truck. He states that this injury occurred sometime in 1975 while he was performing his duties as a member of the United States Air Force band. He contends that he did not report the injury or immediately seek treatment because the band unit had a very active schedule that required them to tour around the United States performing and that there was no time or opportunity to seek medical treatment for the injury. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Turning to the evidence of record in this case, the Board notes that the appellant's service records, to include his DD 214, do note his assignment the Air Force Band and that his primary assignment in the Air Force was as a Trombone Instrumentalist. Service medical records do not document an injury to the cervical spine during the appellant's period of active service, nor do they document an in-service cervical spine disability. In fact, the appellant's neck and spine were examined at separation and determined to be normal, although the Board notes that diagnostic imaging was not completed at that time to confirm the findings of the visual examination. Additionally, on his separation Report of Medical History, the appellant denied having or ever having had recurrent back pain, bone, joint, or other deformity, arthritis, rupture or hernia, head injury, or any other symptom which could be construed as being related to his reported neck injury. Nonetheless, at the appellant's April 2021 hearing, he described an in-service injury to his neck that involved a piano sliding off the back of a truck while it was being unloaded and hitting him in the head and the left side of his neck. The appellant reported treating the ensuing pain with aspirin and cold packs. He stated that the injury occurred while he was on the road with the Air Force band in a small town and that there were no medical facilities to get checked out at. He reported that he began seeking chiropractic care for the injury shortly after he separated from active service and that he has experienced symptoms of pain in the neck ever since. In support of his claim, the appellant has submitted two buddy statements from J.S., another former member of the Air Force band who served at the same time as the appellant. J.S. stated that, sometime between March 1975 and September 1975, he observed the appellant receive a blow to his neck area from a piano they were unloading for a show. He also indicated that this happened during a period of time when the band was performing at county fairs, and was thus not at their assigned duty location with easy access to medical facilities. See Buddy Statement from J.S., received by VA January 31, 2017, and Buddy Statement from J.S., received by VA June 28, 2019. The buddy statements from J.S. are consistent with the reports the appellant has made in pursuing his claim. See Appellant's Form 9, received by VA on January 11, 2019, and Appellant's April 2021 Hearing Transcript. Additionally, the statements from J.S. are consistent with statements the appellant made in August 2017 while he was seeking medical care from his private medical provider. See Private Medical Records, received by VA on November 1, 2017. VA medical treatment records from March 2017 also note the appellant's neck pain symptoms beginning in 1975 after a piano fell on him. In February 2020, VA received a medical opinion regarding this claimed disability from the appellant's treating physician. The physician noted that the appellant experienced severe chronic neck pain on the left side and had a diagnosis of osteoarthritis involving the facet joints in the neck. The appellant's physician explained that, while the cause of osteoarthritis is generally multi-factorial, including genetic factors, trauma, and degenerative processes, the appellant's osteoarthritis likely had an earlier onset than would be expected due to trauma, such as the kind detailed by the appellant. The examiner noted that this was the likely cause of the neck pain the appellant had been experiencing since his period of active service. After reviewing the evidence of record, the Board finds that the appellant has a current disability of arthritis in his cervical spine. The approximate balance of the evidence of record shows the appellant currently experiences functional loss due to pain and decreased range of motion in his cervical spine. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018) (holding that a disability is a constellation of symptoms which "reaches the level of a functional impairment of earning capacity."). As such, the Board finds that the first element of service connection, a current disability, is met. 38 C.F.R. § 3.303. The Board also finds that the approximate balance of the evidence of shows the appellant did have an injury to his cervical spine area during service. The Board notes the appellant is competent to report incidents that he personally observed and experienced, as he has in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is nothing in the record which contradicts his account that the appellant did sustain an injury to his neck. While the service treatment records do not contain any report of injury to the neck or treatment for neck pain, the Board notes that the appellant offered a reasonable explanation for not seeking treatment in service. Additionally, his report of sustaining an injury in active service is also corroborated by the buddy statement from J.S.. As the evidence is in approximate balance regarding whether the appellant suffered an in-service injury to his cervical spine, the Board grants him the benefit of the doubt and finds that the second element of service connection, an in-service injury or incurrence of disease, is met. 38 C.F.R. §§ 3.102, 3.303. Finally, on the question of whether there is a link between the appellant's current disability and his in-service injury, the Board notes that the only evidence addressing this element of service connection is the January 2020 private medical opinion. VA did not obtain its own medical opinion on this question. The January 2020 private medical opinion was offered by the appellant's treating physician and is based on his personal knowledge of the appellant's circumstances and a history of treatment, as well as his training and experience. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008) (explaining that most of the probative value of a medical opinion comes from its reasoning). It offers an explanation of the nature of the current disability, how it generally develops, and how the appellant's particular circumstances account for the current level of severity of the disability, which the examiner opined was likely due to the reported in-service injury. As there is nothing to weigh against the private medical opinion, the Board finds that the approximate balance of the evidence weighs in favor of the appellant's current disability being related to his in-service injury. 38 C.F.R. § 3.303. Considering all this, the Board finds that the criteria for service connection are all met. Therefore, the Board concludes that entitlement to service connection for a cervical spine disability is warranted. 38 C.F.R. § 3.303. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.