Citation Nr: 22014599 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-38 732 DATE: March 14, 2022 ORDER Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. The Veteran's neck disability is related to her active service. 2. The Veteran's back disability is related to her active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1999 to March 2007. For her meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2019 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is of record. SERVICE CONNECTION Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a neck disability 2. Entitlement to service connection for a back disability The Veteran asserts she is entitled to service connection for a neck disability and a back disability. During the Veteran's August 2021 Board hearing, the Veteran testified that she was in a motor vehicle accident in both 2001 and 2004 resulting in pain to her neck and back. She also reported that she felt pain in her neck and back whenever she had to do physical training. The Veteran noted that she was in another motor vehicle accident post-service in 2010. Review of the Veteran's service treatment records (STRs) reveals multiple reports of neck and back pain. Included in those reports, the Veteran had complaints of neck and back pain in May and June 2000, as well as in February 2004 while recovering from a second motor vehicle accident. Private treatment records from August 2010 to May 2018 document ongoing treatment for neck strain and back pain. The Veteran was receiving treatment from a private chiropractor. The Veteran appeared for VA examinations of her neck and back in November 2017. The examiner diagnosed the Veteran with cervical strain and noted that the Veteran reported back pain but did not provide a diagnosis for her back. The examiner opined that the Veteran's neck and back disabilities were less likely than not related to her military service. The examiner stated that the Veteran's condition in service was acute only and that there was no evidence of chronicity of care. The Veteran underwent another VA examination for her neck and back in November 2018. The examiner confirmed the Veteran's diagnosis of cervical strain and a diagnosis of sciatica. The examiner opined that the Veteran's neck and back disabilities were less likely than not related to her military service. The examiner opined that the Veteran's condition in service was acute only with no evidence of chronicity of care. The examiner also noted that the Veteran's symptoms may also be due to her car accident from 2010. In September 2021, the Veteran submitted a medical opinion from her private chiropractor in support of her claim. The chiropractor stated that the Veteran's current neck and back disabilities were more likely than not caused by injuries sustained in service and then exacerbated by her 2010 car accident. The Veteran's chiropractor explained that during service the Veteran had multiple fractures of her lower extremity and was involved in 2 separate motor vehicle accidents. The chiropractor noted that the resulting cervical pain and altered gait are more likely than not the cause of the Veteran's condition. The Board finds that the November 2017 and November 2018 VA examinations are insufficient. Here, both VA medical opinions rely on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The United States Court of Appeals for Veterans' Claims (the Court) has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). The examiners determined that the Veteran's in-service neck and back complaints were acute due to a lack of medical evidence. However, neither examiner considered the Veteran's lay reports of ongoing pain stemming from her physical training and in-service motor vehicle accidents. The VA examiners also did not provide any medical reasons and bases for the opinions provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In contrast, the Board finds that the September 2021 private chiropractor opinion is entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the private chiropractor offered clear conclusions with supporting data. Id. Upon reviewing all of the relevant evidence, the Board finds that the probative evidence of record weighs in favor of finding that the Veteran's current disabilities are related to her military service. Here, the Veteran has a current diagnosis for both her neck and back disabilities. Further, there are multiple complaints of neck and back pain in service, including reports of the Veteran's involvement in 2 motor vehicle accidents. These complaints corroborate with the Veteran's lay statements reporting pain after physical training as well as pain after in-service motor vehicle accidents. Lastly, the Veteran's private chiropractor has established a causal relationship between the Veteran's current disability and her in-service injuries through sound medical reasons and bases. Accordingly, the Board finds that a nexus has been established; and entitlement to service connection for a neck disability and a back disability is warranted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.