Citation Nr: 0811619 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-30 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Associate Counsel INTRODUCTION The veteran served on active duty from August 1965 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The veteran was afforded a Board videoconference hearing on August 31, 2007; a transcript of the hearing is of record. In November 2007 the case was remanded for further development. FINDINGS OF FACT It is reasonably shown that the veteran's current cervical spine disability is related to a neck injury in service. CONCLUSION OF LAW Cervical spine disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. II. Factual Background The National Personnel Records Center (NPRC) has indicated that the veteran's service medical records are not available. The veteran did submit copies of service medical records in his possession; however, they do not show any neck injury or neck complaints in service. A February 2005 cervical spine MRI showed diagnostic impressions of posterior spondylosis and disk protrusions at C5-6, C4-5 and C3-4. In a March 2005 statement the veteran indicated that in the fall of 1996 he was doing periodic maintenance on a Caribou aircraft with Sergeant M. He was standing on the cargo ramp observing Sergeant M perform an inspection when without warning Sergeant M disengaged the cargo door actuator clutch without warning. This allowed the cargo door to rapidly ascend, striking the veteran on the top of the head. At the time it was not deemed necessary for the veteran to go to the doctor. For a week or two he did have a very stiff and sore neck and was put on light duty for about a week. He also indicated that he continued to have some level of neck problem throughout the rest of service. He reported this on separation examination but the examiner "shined it off" as not being a problem. In an April 2005 statement a fellow servicemember, P.E., indicated that he worked alongside the veteran as an aircraft mechanic during service and bunked with him. P.E. remembered that the veteran had told him of a cargo door being dropped on his head. He also remembered that the veteran had had a stiff neck for a period of time after that accident. In a May 2005 letter the veteran indicated that he had sent in all the copies of service medical records that he had but he was certain that the records were incomplete. He also indicated that he was unable to obtain records from doctors that he had seen about his neck soon after service because they were no longer in practice and the records were no longer available. In an August 2006 letter the veteran's brother indicated that during the veteran's tour of duty in Vietnam he had written him that he had been injured but everything else was o.k. After the veteran returned to the states he continued to have trouble with his neck. The brother knew that the veteran had seen several doctors over the past 36 years to no avail. In a separate August 2006 letter a former colleague of the veteran indicated that she had known the veteran for over thirty five years and worked with him for over 12 years. She often discussed with him his assignments while serving in the Air Force and they had specifically discussed the incident that occurred in the fall of 1966 when he sustained the neck injury from the cargo door. Throughout the years she had known the veteran she'd been aware of the chronic pain and other complications he had had with his neck. There had been times over the years that she had had to transport him to the doctor's office due to his extreme discomfort. She had also witnessed occasions when the veteran's pain limited his ability to complete particular job assignments. In a September 2006 memorandum the RO made a formal determination that the veteran's service medical records were unavailable for review. An October 2006 letter from a treating chiropractor, Dr. J, indicated that Dr. J had treated the veteran for neck pain for over 23 years. It was his opinion that the veteran's neck condition more likely than not began in service. He noted that some of the veteran's symptoms involved the lower brachial plexus at the C7, T1 and T2 levels and that he was basing his opinion of the veteran's past history and sound medical/chiropractic probability. At his August 2007 Board hearing the veteran testified that at the time of his neck injury in service he did not seek medical attention because the injury was not life threatening and it was 35 miles from his location to the closest medical facility. Going to the facility would have been a hardship to the whole unit as they were shorthanded to begin with. The veteran had a serious stiff neck for a couple of weeks but because he was young he was able to deal with it. On December 2007 VA neck examination the diagnosis was spondylolysis and degenerative changes superimposed on degenerative disk disease C5-C6 with residuals. The veteran reported that he continued to experience neck pain and stiffness, which radiated especially into the left shoulder and arm and that he experienced a parasthesia or hypesthesia of the radial border of the left index finger. He denied any trauma outside of the injury to his neck in service. Physical examination showed that the neck was thrust forward in a 20 degree angle and that there was an increased cervical lordotic curve. The veteran complained of pain throughout the entire arc of movement of the neck and mild guarding was noted with movement. The examiner commented that the veteran's present conditions of spondylolysis with degenerative disc disease at multiple levels could have been caused by and related to age related degenerative conditions. Based on the medical records, physical examination and the examiner's orthopedic expertise, however, the examiner could not resolve the issue of the likelihood that the veteran's current cervical spine disability was related to service without resort to mere speculation. III. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. IV. Analysis The veteran has presented credible testimony, corroborated by additional credible lay testimony from friends and family, that he incurred a neck/cervical spine injury in service. Thus, even though no neck pathology was noted on the veteran's separation examination, the Board finds that it is reasonably established that this claimed injury occurred. Also, it is clear from the record that the veteran has a current cervical spine disability in the form of spondylolysis and degenerative disc disease. Thus, the only remaining determination to be made is whether the veteran's current cervical spine disability is related to his injury in military service. Hickson, 12 Vet. App. 247, 253 (1999). There are two medical opinions of record addressing a potential nexus between the injury in service and the current cervical spine disability. The October 2006 opinion from Dr. J specifically found that it was more likely than not that the veteran's current neck disability began in service, basing his opinion on the veteran's past history and sound medical/chiropractic probability. In contrast, although the December 2007 VA medical examiner did note that the veteran's current spondylolysis with degenerative disc disease could have been caused by and related to age related degenerative conditions, he did not make any finding on whether it was actually caused by age related factors. Further, the examiner found that he was unable to resolve the issue of the likelihood that the veteran's current cervical spine disability was related to service without resort to mere speculation. The opinion of Dr. J definitely provides specific probative evidence in support of a finding of medical nexus as it clearly indicates that it is more likely than not that such a medical nexus exists. The VA examination report, however, is of little to no probative value as it merely indicates that the veteran's cervical spine disability could have resulted from a non service related cause but ultimately finds that a determination in this regard is not able to be made. Thus, given that Dr. J's opinion is more probative, and is supportive of a relationship between the veteran's neck injury in service and his current cervical spine disability, the Board finds that the weight of the evidence is in favor of such a medical nexus. Given that a neck injury in service, a current neck disability, and a nexus between the two are all established, the preponderance of the evidence is in the veteran's favor and this claim must be granted. ORDER Entitlement to service connection for cervical spine disability is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs