Citation Nr: 22016940 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-37 149 DATE: March 23, 2022 ORDER Entitlement to service connection for a neck disability, to include stenosis, chronic cervical torticollis, and facet strain, is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The most probative evidence of record shows that it is at least as likely as not that the Veteran's neck disability was incurred in or caused by service. CONCLUSION OF LAW The criteria for service connection for a neck disability, to include stenosis, chronic cervical torticollis, and facet strain are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 2010 to April 2015. These matters come to the Board on appeal from a June 2015 VA Regional Office (RO) rating decision. The Veteran testified at a hearing before the undersigned in October 2021; a transcript of that hearing is of record. Entitlement to service connection for a neck disability, to include stenosis, chronic cervical torticollis, and facet strain, is granted. The Veteran contends that he has a current neck disability that is related to a 2011 weight-lifting injury in service. The Veteran also contends that he further injured his nek some time in 2012 when a fellow Marine jumped on his back. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish direct-incurrence service connection, the evidence 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A July 2021 letter from a private medical provider stated that the Veteran has a diagnosis of osseous stenosis, chronic cervical torticollis, and cervical facet strain. Thus, the Veteran meets the first element of Shedden, a current disability. As noted above, the Veteran contends that he injured his neck in service while lifting weights in 2011. Service treatment records support his contention, showing a March 1, 2011 injury to the neck from weightlifting. He was diagnosed with a cervical strain. On entrance to service, the Veteran did not have any noted back or neck problems. The Veteran had continued complaints of neck pain through the rest of the month documented in service records. The Veteran also reported neck pain for the last 6 months in a March 2014 service medical record. Thus, the second element of Shedden, and in-service event, is met. With regard to a link between the Veteran's current neck disability and service, a June 2018 VA examiner opined that the Veteran's neck disability was less likely than not due to service. He reasoned that the Veteran had a congenital spine condition that predisposed him to muscle spasm and strain, and stated that without evidence of trauma or injury, there is no medical evidence that the condition was caused or aggravated by military service. The Board affords the June 2018 VA examiner's opinion no probative weight, as he did not address the service medical records from March 2011 showing a neck injury in service, and then incorrectly stated that there was no evidence of an injury in the record. The July 2021 private medical provider opined that the Veteran's current neck disability was at least as likely as not due to service. She indicated that she was familiar with the Veteran's medical history and that she had examined him under her care. She stated that sprains and strains can lead to long lasting physical consequences including chronic muscle damage, spasm, chronic pain, and stenosis. The Board affords greater probative weight to the July 2021 private opinion as she applied her medical expertise and personally examined the Veteran. Given the above, the Board finds that the most probative evidence of record shows that it is at least as likely as not that the Veteran's neck disability was incurred in or caused by service. Service connection for a neck disability is granted. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The Veteran attended a VA examination in June 2018, and the examiner diagnosed the Veteran with a back muscle spasm. He then opined that the Veteran's disability was less likely than not due to service. He reasoned that the Veteran had a congenital spinal condition that predisposes him to incidences of muscle spasm and strain with physical use activities. He stated that in the absence of trauma or injury, there is no medical evidence that the condition was caused or aggravated by military service. The Board finds the examiner's opinion inadequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner indicated that there was an absence of trauma or injury. The Veteran himself contends that his back pain began with the weight-lifting injury in March 2011. Service treatment records support the Veteran's contention that he had back pain at the time. The examiner does not address the Veteran's contention, nor does he specifically attribute any of the multiple instances of back pain in service to the congenital defect he notes. Further, the Board notes that the Veteran's spine was noted as normal on a 2009 entrance examination. A Veteran is presumed in sound condition upon entry unless noted on entrance examination, and that presumption must be rebutted if the examiner is attributing the Veteran's current back pain to a condition he alleges existed prior to service. Thus, remand is necessary for an addendum opinion. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: Forward the record and a copy of this remand to the June 2018 VA back examiner, or suitable substitute if unavailable. The entire record should be made available for review, to include a complete copy of this remand. Upon review of the record, the examiner must provide an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability was incurred in or caused by service. The examiner must address the multiple instances of back pain found in service medical records. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is proximately due to service-connected neck disability. The examiner must address the Veteran's contention that his back pain began with his neck injury in March 2011, and the records from that date showing back pain. c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is aggravated by service-connected neck disability. If the examiner believes the Veteran's low back disability or cause of that disability pre-existed service, the examiner must also provide an opinion as to whether the Veteran's low back disability, or congenital back disability clearly and unmistakably preexisted his entrance into active service and; if so, whether such disorder clearly and unmistakably did not increase in severity (beyond natural progression) during service. Any such clear and unmistakable evidence must be identified. A complete rationale must be provided for each opinion given. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.