Citation Nr: 22017761 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-23 078 DATE: March 26, 2022 ORDER Service connection for a back disability is granted. Service connection for neck disability is granted. FINDINGS OF FACT 1. The Veteran's back disability is related to an in-service motor vehicle accident. 2. The Veteran's neck disability is related to an in-service motor vehicle accident. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to June 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. At the hearing, the Veteran was granted a 30-day abeyance period for the submission of additional evidence to support her claims. During that time period, the Veteran submitted additional evidence which has been included in the record for consideration. 38 U.S.C. § 7105(e) (2012). A. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159. In this case, any error in notice or assistance regarding the claims is harmless given the favorable determinations. B. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Veteran was afforded a VA examination in October 2019 and the examiner diagnosed lumbosacral strain, cervical strain, degenerative arthritis of the cervical spine, and degenerative disc disease of the cervical spine; thus, the Veteran has current back and neck disabilities. The Veteran testified at the Board hearing that she injured her neck and back due to a motor vehicle accident during service. The Veteran elaborated that she drove over black ice and lost control of the vehicle. The Veteran added that the vehicle landed upside down in a ditch. The Veteran stated that the next day she began experiencing pain in her neck and back and that she could not move from the waist up. The Veteran added that her pain continued and worsened since the in-service accident and that she started seeing chiropractors in about 2002, when she was able to obtain medical insurance. The Veteran is competent to provide evidence regarding the facts or circumstances of what she experienced in service. Additionally, the Veteran's account is corroborated by her service treatment records (STRs). For example, a December 1992 STR documents that the Veteran was in a motor vehicle accident and sustained injuries. The Board finds the Veteran's statements regarding an injury to her back and neck to be credible, as they are consistent with the circumstances of her service as reflected by her STRs. 38 C.F.R. § 3.159(a)(2). Therefore, the second element of the claim of service connection is met. What remains to be established is whether there is a relationship between the Veteran's service and her disabilities. The Veteran was afforded a VA examination in October 2019 and the examiner diagnosed lumbosacral strain, cervical strain, degenerative arthritis of the spine, and degenerative disc disease. The examiner offered a negative nexus opinion. The examiner's rationale was that although the medical evidence showed that a motor vehicle accident occurred in December 1992, it did not show that there were injuries to the back and neck at that time. The examiner added that the Veteran's medical records were silent for treatment for a neck or back condition from discharge until 2015, which showed the absence of a chronic neck or back condition. In January 2021, the Veteran submitted an opinion from her treating physical therapist L.L. from Sports Therapy and Rehabilitation. L.L. stated she reviewed the Veteran's medical records and service records. L.L. opined the Veteran sustained an injury to her neck and back during service as a result of the motor vehicle accident and that it was highly likely that the Veteran's current neck and back disabilities were the result of the in-service accident. L.L. explained that rollover motor vehicle accidents can cause injuries to the spine and the surrounding structures. L.L. indicated that it was evident that the Veteran's in-service accident caused her current neck and back disabilities because the Veteran continued to have recurring neck and back symptoms following the accident. L.L. added that these symptoms included intense back spasms that prevent the Veteran from standing, neck spasms that prevent the Veteran from turning her head, numbness and tingling in her arms, and recurring and prolonged headaches. L.L. stated that the Veteran's continued symptoms were consistent with injuries sustained during a rollover motor vehicle accident. The Board concludes that the evidence is in approximate balance as to whether the Veteran's in-service injuries caused her neck and back disabilities. In reaching this conclusion, the Board assigns substantial weight of probative value to L.L.'s positive nexus opinion because the opinion is based on a thorough review of the medical evidence, is well-reasoned, and supported by the medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion reflects knowledge of the Veteran's history of how the injury occurred as evidenced by the fact that L.L. repeatedly mentioned that the Veteran was involved in a rollover motor vehicle accident during service. Additionally, L.L. stated that the Veteran has endured symptoms following the accident such as muscle spasms, numbness and tingling in her arms, and headaches. L.L. explained that these symptoms were consistent with the in-service motor vehicle accident and showed that the in-service accident caused the Veteran's current neck and back disabilities. Additionally, L.L. is the Veteran's treating provider and therefore has knowledge of her circumstances. L.L.'s rationale of her discussion of the history of the disabilities is based on this knowledge. Further, L.L.'s opinion is not stated in speculative terms. Rather, the opinion is certain as it indicates that it is highly likely that the Veteran's in-service injury resulted in her current neck and back disabilities. For these reasons, the Board affords great weight of probative value to L.L.'s positive nexus opinion. The Board finds the October 2019 VA opinion to be entitled to little weight of probative value. The examiner's rationale is based on the absence of documented medical evidence while ignoring the Veteran's competent lay statements. For example, the examiner noted that the Veteran's medical records were silent for treatment for a neck or back condition from discharge until 2015, which showed the absence of a chronic neck or back condition. However, the examiner ignored the Veteran's lay statements that she began to experience pain in her neck and back during service and the pain continued and worsened after service. For these reasons, the Board affords little weight of probative value to the October 2019 opinion. In sum, the Board finds that the evidence persuasively favors that the Veteran's in-service motor vehicle accident caused her neck and back disabilities. Therefore, service connection is granted for neck and back disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Patel, 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.