Citation Nr: 22015246 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-30 171 DATE: March 16, 2022 ORDER Entitlement to service connection for a cervical spine disability is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, his cervical spine disability, to include degenerative disc disease and degenerative arthritis, had its onset in service and has continued since service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, to include degenerative disc disease and degenerative arthritis, have been met. 38 U.S.C. §§ 1131, 5017(b) (2018); 38 C.F.R. § 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to May 1982. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed an initial claim for back pain in March 1983. This was denied in an October 1985 Board decision and the Veteran did not submit a timely appeal of this decision. The claim was deemed reopened in the September 2018 Board decision due to the submission of new and material evidence. This issue was previously remanded by the Board for additional development in September 2018, October 2019, May 2021, and December 2021. 1. Entitlement to service connection for a cervical spine disability The Veteran contends that his cervical spine disability began in service and has continued since service. The Board concludes that the Veteran has current diagnoses of degenerative disc disease and degenerative arthritis that began during active service and that service connection is therefore warranted. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Service treatment records (STR) showed that the Veteran had at least five chiropractic manipulations prior to November 1979. The STR's were silent for any report of neck pain, treatment, or diagnosis. No neck pain was reported on the March 1982 separation examination. A June 1983 VA examination noted the Veteran's report of neck pain for the last two years. While the examiner included a diagnosis of chronic neck pain, he did not provide an etiology and cervical spine imaging was reported as normal. Private MRI reports from August 2005 and March 2019 found disc bulges and herniation at multiple levels of the cervical spine. The Veteran was seen for neck pain and diagnosed with other unspecified soft tissue disorder in January 2017. Private treatment records from March 2019 included diagnoses of cervicalgia and cervical radiculopathy. VA treatment records noted complaints of neck pain on multiple occasions. A July 1991 CT report of the cervical spine was normal. In September 1991, the Veteran reported neck and back pain, but x-ray imaging was read as within normal limits. April 2012, November 2013, March 2018, and September 2018 treatment records noted that the Veteran was experiencing multiple joint pains, including of the neck. In March 2019, the Veteran reported worsening pain and the provider noted that recent imaging showed significant abnormalities. The May 2019, January 2020, and June 2021 VA examinations diagnosed the Veteran with degenerative disc disease and degenerative arthritis based on the March 2019 private MRI report. At the outset, the Board finds that, as it pertains to the diagnosis and presence of a disability, these VA examinations are adequate for appellate review. There is no evidence that the providers were not competent or credible, and as the reports are based on the Veteran's statements, medical records review and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). However, the Board notes that the May 2019, January 2020, June 2021, and August 2021 VA etiology opinions were deemed inadequate for rating purposes in prior Board remands. As such, the Board will not consider the findings therein in its analysis. A December 2021 VA etiology opinion found that the Veteran's cervical spine disability was not likely due to his service as there was no contemporaneous record to support the Veteran's report of an in-service injury, disability within a year of service, or continuity of care following service. As the December 2021 opinion improperly disregarded the Veteran's lay evidence regarding the origin and continuity of his symptoms solely due to the lack of contemporaneous medical evidence, it is inadequate, and the Board assigns it no probative weight. See Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran submitted multiple statements during the course of the current appeal in which he consistently stated that he has been experiencing neck pain since January 1979, following spinal manipulation treatment for a back injury. The Veteran also noted that he sought treatment in the years that followed service due to continued pain in his neck, right shoulder, and right arm. The record also includes a December 1984 statement in which the Veteran made similar statements about the origin of his neck pain during service and their consistency since service in support of his March 1983 claim for neck pain. The Veteran's wife submitted an October 2013 statement in which she remarked that she had been married to the Veteran since August 1978, and that his neck condition manifested soon after a back injury in January 1979. At the time, the Veteran complained to her about a Navy physician's treatment of his back pain. The Veteran told her that his neck was being injured every time the physician was "jerking on his neck" when performing chiropractic adjustments. She indicated that the Veteran continues to complain of neck pain. The Veteran's friend, J.B., also submitted an October 2012 statement that the Veteran had physical difficulties, including pain in his back, knees, shoulder, and arm, which led him to leave his former employment. The Board notes that the Veteran is competent to report lay-observable symptoms such as neck pain and the time of its onset and accords his statements significant probative weight. See Layno v. Brown, 6 Vet. App. 465, 470. Similarly, as lay persons, the Veteran's wife and friend are competent to report what the Veteran told them and their own observations of his function. Id. The Board also accords their statements significant probative weight. The Board therefore finds that the competent evidence of record indicates that the Veteran has a cervical spine disability that was incurred during service and has continued since service. The Veteran has submitted credible lay evidence regarding the onset of his neck pain during service. This lay evidence is supported by the later diagnoses of degenerative disc disease and degenerative arthritis in the VA examinations of record. The Veteran's report about the origin of his neck pain is also supported by the timing of his initial claim within a year of his service, as well as the June 1983 VA examination in which the Veteran reported in-service neck pain. The VA and private medical records show treatment following service, though sporadic in nature, which further supports the Veteran's lay statements regarding the consistency of his pain since service. As all the VA etiology opinions have been found to be inadequate, there is no competent evidence in the claim file to disassociate the current diagnosed cervical spine disability from the reports following service. Applying the benefit of the doubt in the Veteran's favor, the Board finds that the competent evidence of record supports the conclusion that the Veteran's cervical spine disability began in service and has been continuous since service. Service connection is therefore warranted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.