Citation Nr: 22013158 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-34 548 DATE: March 8, 2022 ORDER Entitlement to service connection for a neck disability, diagnosed as mild degenerative disc changes C5-C6 to include degenerative arthritis of the cervical spine, is granted. FINDING OF FACT The Veteran's neck disability, to include mild degenerative disc changes C5-C6 to and degenerative arthritis of the cervical spine, began during his active duty service. CONCLUSION OF LAW The criteria for service connection for a neck disability, diagnosed as mild degenerative disc changes C5-C6 to include degenerative arthritis of the cervical spine, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2000 to September 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter, inter alia, was remanded by the Board in March 2019 and October 2021. The requested development has been completed and the issue is again before the Board for additional appellate consideration. Entitlement to service connection for a neck disability, to include as secondary to service-connected adjustment disorder. In this post-remand case, the Veteran seeks service connection for a neck disability to include as secondary to his service-connected adjustment disorder. As shown more fully below, the Board finds entitlement to service connection on a direct basis to be warranted. By way of history, this issue was remanded by the Board in March 2019 in order to obtain an opinion as to whether the Veteran's neck disability was incurred in or caused by his active-duty service. An opinion was obtained in July 2019; however, in October 2021, the Board found the opinion to raise the question of secondary service connection. Therefore, the issue was again remanded in order to obtain an opinion regarding secondary service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 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). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Further, if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.309. Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Chronicity is established if the claimant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. The claimant may establish service connection by continuity of symptomatology. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Analysis To begin, the Veteran attended physical therapy between July 2014 and November 2014 with treatment for his neck. The Veteran was afforded a VA examination in May 2017 and July 2019. The May 2017 examiner diagnosed the Veteran with cervical strain. The July 2019 examiner confirmed the diagnosis of cervical strain and also included a diagnosis of mild degenerative changes C5-C6 to include degenerative arthritis of the cervical spine. The Veteran reported the onset of his disability occurred around 2013 and was exacerbated following a motor vehicle accident in July 2016 that made the disability worse. Therefore, given the evidence of a current disability, the Board finds the first element necessary for direct and secondary service connection to be met. As it pertains to the second element, an in-service event or injury, physical therapy notes from July 2014 indicate the Veteran was involved in a rollover accident following an improved explosive device (IED) explosion in Iraq in 2004. He reported experiencing brief loss of consciousness and alteration of consciousness. He sustained a scalp laceration but did not require stitches. He recovered from his mild concussion per his report. The Veteran's DD-214 indicates his deployment to Iraq. Multiple VA psychological examinations discuss the Veteran's deployment and subsequent IED blasts. Furthermore, per the July 2019 VA examiner's opinion providing that factors to include poor psychological and mental status contribute to his cervical spine pain, he is currently service connected for an adjustment disorder. As such, given the evidence of an in-service IED blast and his currently service-connected adjustment disorder, the Board finds the second element necessary for direct and secondary service connection are met. With regard to the final element, a medical nexus, the Board finds the Veteran's neck disability to include mild degenerative disc changes C5-C6 and degenerative arthritis of the cervical spine were at least as likely as not incurred in or caused by his active-duty service. Specifically, the Board finds service connection to be warranted on a direct basis given the Veteran's statements regarding continuity of symptomatology. First, an opinion regarding direct service connection was obtained in July 2019. The examiner stated that the Veteran's neck disability was less likely than not (less than 50 percent probability) incurred in or caused by his active-duty service. The examiner provided the rationale that the Veteran did not complain of neck pain until several years after his release from active duty and that his service treatment records (STRs) are silent as to complaints and/or diagnosis. The examiner stated that studies show that between the Veteran's July 2016 MVA, his occupation as a student and internet computer salesman, his poor psychological and mental status, and body mass index (BMI) all contribute to his cervical spine pain. Therefore, a nexus has not been established. The Board finds this opinion to be of little probative value. Second, following the Board's October 2021 remand, an opinion regarding secondary service connection was obtained in November 2021. Here, the examiner stated that the Veteran's neck disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected disability. The examiner provided the rationale that the Veteran is diagnosed with cervical strain and degenerative disc disease. A strain implies overuse or an acute injury that is not caused by psychological conditions as it is a musculoskeletal condition. Further, the examiner provided that the Veteran's degenerative changes are naturally occurring, are age appropriate at the time of the diagnosis, and that there is no evidence that it has been aggravated beyond its natural course due to any cause. The Board also finds this opinion to be of little probative value. During the Veteran's physical therapy between July and November 2014, the Veteran reported that he "has had neck pain for several years" and sought treatment during those months to help alleviate pain and stiffness. He provided that the pain initially began intermittently and that he was unable to move his neck for a few days. Prior to physical therapy, he reported that the pain was becoming more constant occurring for 2-3 days with a 6-8/10 pain and then for 3-4 days with pain at 3-4/10. The pain would cycle between the severity. The physical therapist noted that the Veteran's cervical mechanical pain likely secondary to myofascial pain syndrome and that his history of anxiety and chronic pain contribute to his current symptoms. However, each examiner, the July 2019 and November 2021, did not provide adequate rationale as to the Veteran's credible lay statements regarding his ongoing neck disability. In summary, the record contains the Veteran's credible lay statements regarding the continuity of symptomatology as to the chronic disorders of degenerative disc disease and arthritis of the cervical spine, and that the negative nexus opinions are of little probative value. Accordingly, the Board finds the evidence is at least in approximate equipoise as to the existence of a nexus between the Veteran's degenerative disc disease and arthritis of the cervical spine, and his active-duty service. Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection is warranted for this disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.