Citation Nr: A23026363 Decision Date: 09/25/23 Archive Date: 09/25/23 DOCKET NO. 190530-20422 DATE: September 25, 2023 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for lumbar spine injury is granted. REMANDED Entitlement to service connection for right shoulder chronic trapezius muscle disease is remanded. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, his cervical spine disability is at least as likely as not related to his service, to include a neck injury during a martial arts training exercise. 2. Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is at least as likely as not related to service, to include carrying heavy loads. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. 2. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S Marines from January 2003 to December 2003. He had additional service in the Reserves. In the May 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). He testified at a Board hearing in June 2023 before the undersigned Veteran Law Judge. A transcript is associated with the record. In December 2021, the Veteran's attorney representative withdrew from the case and had informed the Veteran of his wish to withdraw as representative. Therefore, the Veteran is proceeding pro se in these matters. 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 disability. 2. Entitlement to service connection for a lumbar spine disability. The Veteran contends that his cervical spine disability and claimed right shoulder pain are due to his service. Specifically, he injured his neck in a martial arts training exercise during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has current disabilities of the lumbar and cervical spine that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The March 2017 VA examination shows the Veteran has a current diagnosis of degenerative joint disease (DJD) of the cervical spine. A February 2019 MRI of the lumbar spine shows left paracentral L1-L2 annulus fibrosis tear, with associated small disc protrusion in the lumbar spine. Thus, the question becomes whether the current disabilities are related to service. On this question there are probative opinions in favor of and against the claim. Private treatment records dated May 2018 show that the Veteran's treating physician found that his low back pain began with carrying heavy loads during military service. The physician also noted that the injury was military service connected consistent with the Veteran's description. Supplemental history showed chronic and worsening neck pain for 14 years, with a history of neck injury during military training. Again, the physician noted that the injury is military service connected consistent with the Veteran's description. The March 2017 VA examiner opined that the Veteran's cervical spine DJD is not at least as likely as not related to an in-service injury, event, or disease, including the neck injury during training. The rationale was that DJD is a disease with a clear and specific etiology. DJD was less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. It is of biomechanical etiology, likely incidental and due to aging. There was no evidence that his in-service injury was anything more than an acute episode of muscle strain. As for the lumbar spine, the March 2017 VA examiner found no diagnosis based on a review of accompanying x-ray report and examination of the Veteran. The Veteran did report pain and intermittent spasming. The Board notes that both the VA and private examiners' opinions are probative, because they were based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar and cervical spine disabilities arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for both a lumbar spine and a cervical spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder condition is remanded. The service connection claim for the right shoulder was previously denied based on a lack of diagnosis. The record shows and the Veteran reports pain but no diagnosis has been confirmed. He testified that he experienced pain, spasming, numbness, and tingling in his shoulder and neck. When it was agitated, he was unable to turn his neck. Saunders v. Wilkie stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, there is evidence that Veteran has symptoms that may cause functional impairment. He has also indicated that the neck and shoulder began during service due to a martial arts training injury. He believes his current shoulder pain and other symptoms are a direct result of the in-service injury. There has been a pre-decisional duty to assist error as the March 2017 VA examination did not properly address functional impairment in the right shoulder/trapezius area. A remand is necessary for an adequate opinion. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his claimed right shoulder condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is right shoulder condition at least as likely as not related to service, including a neck injury that occurred during a martial arts training exercise? (Continued on the next page) ? Provide a rationale to support the opinion(s). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.