Citation Nr: A25035497 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210630-169345 DATE: April 17, 2025 ORDER Entitlement to service connection for a cervical spine disorder is granted. Entitlement to service connection for a lumbar spine disorder is granted. FINDING OF FACT The evidence is in at least a state of approximate balance as to whether the Veteran's cervical and lumbar spine disorders were incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder 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 lumbar spine disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2006 to October 2007 and from June 2009 to August 2010. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued by a department of Veterans Affairs (VA) Regional Office (RO). In this regard, an August 2019 decision denied service connection for a neck condition and a low back disability. See October 2018 Veteran's Supplemental Claim for Compensation (VA Form 21-526b); August 2019 Rating Decision. The Veteran requested Higher Level Review of this decision, and in an October 2020 decision, a higher-level reviewer at the RO continued to deny service connection for neck and low back conditions. See May 2020 Decision Review Request: Higher-Level Review (VA Form 20-0996); October 2020 Rating Decision. Thereafter, in June 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2019 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the June 2021 VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Finally, the Board notes that the August 2019 rating decision did not explicitly find that new and relevant evidence had been submitted sufficient to readjudicate the Veteran's previously denied claim for service connection for a back disorder. See 38 C.F.R. § 3.156(d) (reflecting that, under the modernized review system, also known as the Appeals Modernization Act (AMA), new and relevant evidence is required to readjudicate claim that has been the subject of a previous denial). See also 38 C.F.R. § 3.2501 (defining "new" and "relevant" for purposes of readjudicating the claim); 38 C.F.R. § 19.2(d). However, in that rating decision, the agency of original jurisdiction (AOJ) adjudicated the issue on the merits. See August 2019 Rating Decision (discussing the elements of entitlement to service connection and finding that a nexus has not been established between the Veteran's claimed back condition and his active service). By reaching the merits of the Veteran's service connection claim, the RO effectively found that new and relevant evidence had in fact been submitted sufficient to readjudicate the claim. This constitutes a favorable finding that is binding on the Board. See 38 C.F.R. § 3.104(c) (reflecting that favorable findings made by VA adjudicators are binding on all subsequent VA adjudicators, absent clear and unmistakable error). The Board will therefore address the merits of the issue without consideration of whether new and relevant evidence is required to readjudicate the previously denied claim. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). ? 1. Entitlement to service connection for a cervical spine disorder is granted. 2. Entitlement to service connection for a lumbar spine disorder is granted. The Veteran has asserted entitlement to service connection for disabilities affecting his back and neck, maintaining that these conditions represent the progression of in-service injuries. See, e.g., October 2018 Veteran's Supplemental Claim for Compensation (VA Form 21-526b); November 2017 Expert Independent Medical Review from D.B.M., Jr., M.D., J.D. (documenting the Veteran's reports regarding the nature of his in-service injuries and the post-service continuity of his symptoms). As an initial matter, the Board notes that the AOJ recognized that the Veteran has current diagnoses of disorders affecting his lumbar and cervical spine and further conceded the occurrence of "a qualifying event, injury, or disease" during the Veteran's active service, confirmed by service treatment records showing treatment for neck and back pain. See October 2020 Rating Decision. See also March 2007 Chronological Record of Medical Care (Standard Form (SF) 600) (reflecting that the Veteran was in a "Humvee rollover... with no seatbelt," documenting his complaints of resultant back and neck pain, and noting a diagnostic impression of back and neck strain). Accordingly, the first and second elements of service connection, namely that of a current disability and incurrence of an in-service injury, are established. See 38 C.F.R. § 3.104(c) (reflecting that favorable findings made by VA adjudicators are binding on all subsequent VA adjudicators, absent clear and unmistakable error). Therefore, the question remains whether there is evidence of a nexus between the diagnosed cervical and lumbar disorders and the Veteran's active service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). ? In this regard, there is medical evidence of record linking the Veteran's current back and neck conditions to his active service. Specifically, in a November 2017 report, Dr. D.B.M., Jr. opined that the Veteran's current lumbar and cervical spine conditions were at least as likely as not related to in-service injuries, including specifically "injuries sustained during the Humvee rollover accident (where the vehicle dropped approximately 6 - 7 feet, and then rolled over three times), and the IED explosion (which destroyed the front end of the Humvee vehicle)." See November 2017 Expert Independent Medical Review from D.B.M., Jr., M.D., J.D. (received by VA in January 2018). In support of this determination, Dr. D.B.M., stated that his clinical interview of the Veteran, a review of the evidence of record, including the Veteran's service records documenting the Humvee accident and IED explosion, his post-service medical records reflecting consistent reports of chronic back and neck symptoms, and relevant medical scholarship supported the conclusion that the Veteran sustained "chronic mechanical soft tissue injur[ies]" affecting his lumbar and cervical spine during active service, which continued to progress in the years following his discharge, resulting in his currently diagnosed back and neck conditions. See id. The Board finds the November 2017 medical opinion of Dr. D.B.M., Jr. to be highly probative evidence weighing in favor of the claim, as it represents the informed conclusions of a medical professional with relevant, specialized expertise; reflects a thorough understanding of the Veteran's service records, post-service medical records, and clinical history; is supported by thorough, clear, well-reasoned explanations with citations to the evidence of record and references to relevant medical principles, treatises, and studies; and is generally consistent with the evidence of record, including the Veteran's service records, medical treatment records, and submissions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians' access to a Veteran's medical records). Accordingly, the November 2017 medical expert's opinion carries significant probative weight in the Board's determination. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Moreover, there is no medical opinion evidence that contradicts this determination. Thus, viewing the evidence in the light most favorable to the Veteran, given the diagnoses of current disorders of the cervical and lumbar spine, considering the probative medical evidence reflecting a relationship between the Veteran's diagnosed back and neck disorders and his in-service injuries, in the absence of any probative medical evidence to the contrary, and resolving all doubt in the Veteran's favor, the Board finds that, at the least, reasonable doubt exists as to the question of the origin of the Veteran's back and neck disorders. When resolving reasonable doubt in favor of the Veteran, the Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether the Veteran's lumbar and cervical spine conditions are attributable to his active military service. Under VA law, in such a circumstance, the claimant must prevail. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). As such, service connection is granted for disorders of the cervical and lumbar spine. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.