Citation Nr: 22017684 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-05 635A DATE: March 25, 2022 ORDER Service connection for vertigo is granted. Service connection for a back condition, diagnosed as degenerative arthritis of the thoracolumbar spine, is granted. Service connection for a neck condition, diagnosed as cervical spondylosis, is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's vertigo had its onset in service. 2. Resolving all doubt in the Veteran's favor, the Veteran's degenerative arthritis of the thoracolumbar spine is proximately due to his service-connected TBI. 3. Resolving all doubt in the Veteran's favor, the Veteran's cervical spondylosis is proximately due to his service-connected TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for degenerative arthritis of the thoracolumbar spine as secondary to service-connected TBI are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for cervical spondylosis as secondary to service-connected TBI are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1977 to October 1980 to include aboard the USS Albany. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2021. The undersigned VLJ granted the Veteran's request to hold the record open for 60 days for the submission of additional evidence and argument, which was thereafter submitted directly to the Board. The evidence submitted during this period, along with the evidence already of record, will be considered by the Board in the adjudication of this appeal. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an 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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service connection for vertigo is granted. The Veteran asserts that his vertigo began after he was hit in the head on deck in 1978 with a 60 to 75-pound hoist. As for the neck and back conditions, he asserts these developed as a result of that initial injury and are thus secondary to the service-connected TBI. See September 2021 hearing transcript. The October 1978 incident onboard ship in which the Veteran was struck in the head with a very heavy joist is documented in the service treatment records. Service connection is in effect for TBI, a residual scar and migraines related to the incident. He believes the vertigo is part of the same process that led to the headaches. As to vertigo, current disability is reflected in the VA treatment records dated throughout the appeal period. Vertigo was diagnosed in a December 2015 VA examination. Records authored by the Veteran's VA provider reflect that the Veteran has reported that vertigo has been present since the incident. Moreover, the Veteran testified that he has had dizziness and what he perceives to be symptoms of vertigo since he was hit in the heat with the 60- pound hoist onboard ship in 1978. After a review of the evidence of record, the Board finds that service connection for vertigo is warranted. In reaching this determination, the Board notes there is current disability, in-service incurrence of injury and competent and credible evidence of a relationship between the current vertigo and service. Here, his testimony and his consistent reports of symptoms since service in the treatment record constitute evidence of the relationship. The Veteran is competent to report the onset and continuation of his vertigo and dizziness symptoms and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). On balance, the evidence shows that the Veteran's vertigo is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303 (a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). While the 2015 VA examination with negative opinion has been considered, the Board finds the evidence is in approximate balance. The Veteran is competent to report he had dizziness since he was struck in the head with the heavy object in 1978. The fact that vertigo was not specifically reported at the time of the service separation examination does not outweigh the clarifying testimony in 2021 as to continuous lay observable symptoms since service. The Board finds the testimony fully credible. For the above reasons, the evidence is at least evenly balanced as to whether vertigo had its onset in service. As such, service connection for vertigo is warranted. 2. Service connection for a back condition, degenerative arthritis of the thoracolumbar spine, as secondary to service-connected TBI is granted. 3. Service connection for a neck condition characterized as cervical spondylosis as secondary to service-connected TBI is granted. The Veteran asserts that back and neck conditions are proximately due to his TBI. See September 2021 hearing transcript. A December 2015 VA examination report contains a diagnosis of degenerative arthritis of the thoracolumbar spine and VA treatment records dated in September 2016 reflect findings of cervical spondylosis. Thus, the Veteran has satisfied the first element of service connection. There is competent medical opinion evidence of record in support of and against the theory that the conditions are related to service-connected disability TBI. A December 2015 VA examination contains the opinion that there is no current cervical spine disorder and the current lumbar disorder is not due to TBI. In contrast, the Veteran's treating VA neurologist observed in March 2018 that the cervical spine disorder was 'secondary to his service-connected injury.' This same provider opined in January 2015 that the changes in the Veteran's lumbar spine are consistent with head or neck injury and the Veteran's multiple symptoms are related to the head trauma that took place in 1978. In September 2016, this physician indicated that cervical spinal stenosis was related to the 1978 accident. Based on the evidence of record, including the evidence highlighted above, the Board finds that the evidence is approximately balanced regarding whether the degenerative arthritis of the thoracolumbar spine and cervical spondylosis are proximately due to his service-connected TBI. The benefit-of-the-doubt doctrine applies. 38 U.S.C. § 5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). (Continued on the next page) As such, because the evidence supports the Veteran's claims of service connection for degenerative arthritis of the thoracolumbar spine and cervical spondylosis, service connection for this disabilities is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.