Citation Nr: 22013582 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-37 290 DATE: March 10, 2022 ORDER Service connection for a cervical spine disability is granted. FINDING OF FACT The Veteran's current cervical spine disability is related to service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1968 to April 1972, from January 1975 to October 1978, and from October 1978 to July 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing before the undersigned and a transcript of that hearing is of record. Service connection for a cervical spine disability. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). After careful review, the Board finds that the evidence supports the claim that service connection for a cervical spine disability is warranted. The Veteran contends that his cervical spine disability is related to his military occupation specialty (MOS) as an infantryman during active service. In October 2015, the Veteran was afforded a VA neck/cervical spine conditions examination and medical opinion. The VA examiner diagnosed the Veteran with cervical spondylosis and degenerative disc of the cervical with radiculopathy. At the examination, the Veteran reported having neck pain. He indicated that he started having pain after wearing heavy packs and a helmet during ruck marches in active service. The Veteran noted that he served in the infantry which required a lot of physical demands. The Veteran reported the pain continuing from service up through November 2014 when he stated the neck pain worsened, which brought him to an orthopedist who performed an MRI and recommended cortisone injections. The VA examiner opined that the Veteran's neck condition was less likely than not due to an in-service injury based on the rationale that there was no evidence of a neck injury in the Veteran's service treatment records (STRs). The VA examiner noted that the Veteran didn't have a neck problem until 2014 and that the Veteran's retirement physical indicated he was in good health. In May 2016, the Veteran submitted a statement along with his Notice of Disagreement (NOD) regarding the onset of his neck pain on active duty as due to activities related to his MOS as an infantryman. Further, also in May 2016, the Veteran's spouse submitted a statement indicating that the Veteran began experiencing neck pain while on active duty. The Veteran's spouse reported that she bought a special contour neck pillow, which they still have. The Veteran's spouse also indicated that the pillow did not alleviate the Veteran's neck pain that is with him presently. In October 2016, the Veteran submitted a positive medical opinion from his primary care provider, Dr. A.. Dr. A. reported that he provided primary care services for the Veteran from 2004 to 2014 and that during that time, he reviewed the Veteran's STRs and history as an infantryman. Significantly, Dr. A. indicated that in his experience as the Veteran's primary care physician for 11 years, it is more likely than not that the physical conditions of being an infantryman during the Veteran' service caused, contributed to, or aggravated the Veteran's present disabilities to include that of his cervical spine. In April 2018, the Veteran submitted an additional positive medical opinion from his orthopedic surgeon, Dr. W.. Dr. W. reported that he provided primary care services for the Veteran from April 2015 to June 2017 and performed surgery on the Veteran. Dr. W. also noted that he specializes in orthopedic surgery, specifically the spine and served as the Chief of Spine Surgery in the United States Army at Fort Bragg. Dr. W. opined that, after reviewing the Veteran's military service medical record and STRs, the trauma to the head caused by the riot baton on May 8, 1986, in addition to the continuous wear and tear from heavy equipment as a combat infantryman, are more likely than not the cause of his continued conditions. The Veteran testified before the undersigned in October 2021. He endorsed continuous neck pain since first experiencing the pain around 1975 at Fort Ord when he was required to wear heavy equipment around his neck. The Veteran explained that his MOS as an infantryman during his second period of active service required him to continuously carry heavy equipment. The Veteran stated that he dealt with the neck pain instead of going to a doctor. Additionally, the Veteran indicated that since his MOS as an infantryman, he has had continuous neck pain. The Board has considered the Veteran's October 2015 VA medical examination and opinion but affords the opinion low probative value for several reasons. First, the VA examiner provided a negative medical nexus on the basis that there was no evidence of a neck injury in the Veteran's service treatment records (STRs), the Veteran not having a neck problem until 2014 and that the Veteran's retirement physical indicating he was in good health. The Board notes that the mere fact that medical records do not establish chronicity is not, in and of itself, a sufficient basis on which to rest a medical conclusion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Second, the VA examiner completely discounted the Veteran's statement regarding neck pain onset because of a lack of contemporaneous medical records documenting the condition. Such omission and oversight render the opinion inadequate, as the absence of contemporary medical evidence does not necessarily mean evidence of symptom or disability absence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Third, the October 2015 VA examiner did not consider or discuss the Veteran's lay statements that he reported to the VA examiner during the examination. The Veteran indicated that he started having neck pain after wearing heavy packs and a helmet during ruck marches. The Veteran noted that he served in the infantry which required a lot of physical demands. However, the Veteran's contentions were not discussed as part of the VA examiner's rationale for opining that the Veteran's disability was not related to service. See Dalton v. Nicholson, 21 Vet. App.23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). As such, the October 2015 VA medical opinion is given low probative value. Next, the Board finds the October 2016 and April 2018 private medical opinions to be both competent and credible, and as such, are both entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The opinions were rendered after reviewing service medical records, STRs, VA treatment records and after years of providing primary care to the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Significantly, the Board affords the October 2016 and April 2018 private medical opinions, finding that the Veteran's cervical spine disability is at least as likely as not related to service, more probative weight than the October 2015 VA medical opinion. The Board notes that the October 2015 VA medical opinion did not account for the Veteran's lay statements of experiencing neck pain since service. Therefore, the Board finds the October 2016 and April 2018 private medical opinions to be more probative than the October 2015 VA medical opinion. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board). The Board also finds that the Veteran's statements regarding his in-service neck pain symptoms and ongoing pain since service have been generally consistent. The Veteran is competent to describe observable symptoms of pain in his neck, and he can also report incidents in service that he experienced. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Board finds the Veteran's lay statements to be competent and credible, as well as the Veteran's spouses statement in May 2016, and therefore are entitled to probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). (Continued on the next page) In sum, the Board finds the October 2016 and April 2018 private medical opinions, stating the Veteran's cervical spine disability is at least as likely as not related to service, more probative than the October 2015 VA medical opinion, which provided a negative medical nexus. Thus, service connection for a cervical spine disability is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.