Citation Nr: 0812555 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 98-17 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a cervical spine disorder, to include osteoarthritis and degenerative disc disease. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from July 1951 to July 1955, from March 1958 to June 1962, and he performed Reserve component duty at various times. This case comes before the Board of Veterans' Appeals (Board) from a November 1997 rating decision of the Department of Veterans Affairs (VA) Nashville, Tennessee, Regional Office (RO) that determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for cervical spine osteoarthritis and degenerative disc disease. In a December 1999 decision, the Board determined that new and material evidence sufficient to reopen the claim had not been received. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2001, the Court vacated and remanded the case. In August 2003, the Board remanded the case to the RO for additional development. In March a 2006 decision, the Board found that new and material evidence had been received and reopened the previously denied claim for service connection for a cervical spine disability. The Board then remanded the case to the RO for additional medical evidence. FINDINGS OF FACT 1. The service medical records (SMRs) do not document a neck injury in 1952. 2. The veteran has competently and credibly reported a neck injury in 1952. 3. A private physician has attributed cervical spine degenerative arthritis and degenerative disc disease to a claimed neck injury during active service. 4. No competent evidence of intercurrent cause of any current neck disorder has been submitted. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, a cervical spine disorder, to include osteoarthritis and degenerative disc disease, was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided in 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), VA has a duty to notify and assist the claimant in the development of the claim. In this case, the Board is granting the benefit sought on appeal. Accordingly, VA's duty to notify and to assist need not be discussed. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2007). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When there is an approximate balance of 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 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat veterans under 38 U.S.C.A. § 1154(b), but, because the veteran was not in combat, he will not be afforded this consideration. The salient facts of the case are that the SMRs do not clearly show an injury to the neck during active service in the 1950s, but do note that on February 1, 1952, the veteran developed a back strain after lifting a 100 pound bag. There is also mention in 1960 of hyperalgesia of both shoulders and hips following an accident wherein the veteran suffered a fractured right elbow. A May 1977 private medical report first documented spondylosis at C4 through C6. Following the veteran's discharge from the Reserves in the 1980s, he has pursued, unsuccessfully, a claim for service connection for cervical spine arthritis, claiming a neck injury during active service in the early 1950s. His claim was denied on the basis of no documented neck disability during active service. In December 2006, private physician R. Fraser, M.D., reviewed the pertinent medical history in the claims files, interviewed and examined the veteran, and offered a favorable medical opinion. Dr. Fraser noted the veteran's claim of a neck injury on February 1, 1952, when a 100 pound weight was dropped on his head and neck and also of subsequent injuries during active service that could likely have caused or aggravated any cervical pathology. Thus, the physician felt that two old service injuries contributed to the current neck disability. The SMRs do reflect a fall in March 1959 wherein the veteran suffered a right elbow fracture. Shoulders and hip pains ensued in 1960. The private physician found these symptoms consistent with a pinched cervical nerve due to injury, such as the fall in 1959 or the earlier claimed injury. The physician then noted that by the early 1980s, degenerative disc disease was so severe as to terminate the veteran's Reserve component service. Dr. Fraser specifically commented on some 1983 X-rays and computed tomography (CT) scans that showed severe degenerative changes of the cervical spine and reported the following: The X-rays findings described above are not acute and took decades to develop. These degenerative changes are consistent with the development of arthritis following the two neck injuries occurring while [the veteran] was in military service in the 1950s. Dr. Fraser then concluded with this: It is my professional opinion after performing a complete review of the VA claim file on [the veteran] that, with the highest degree of medical and professional certainty, [the veteran] sustained injuries to his neck while in military service in the 1950s capable of causing cervical arthritis. These injuries were also clearly capable of significantly aggravating any underlying degenerative arthritis leading to the development of incapacitating arthritis in the 1980s, several decades later. Moreover, within a reasonable degree of medical and professional certainty [the veteran] developed cervical arthritis as a direct result of the injuries he sustained in the 1950s while in military service. In February 2007, a VA staff physiatrist (an M.D.) reviewed the claims file and the private medical opinion summarized above and offered a different conclusion. The physician found no basis to support the veteran's allegation of a neck injury in 1952 and, based on an absence of documentation, simply concluded, "I do not feel that the mild degenerative changes in the cervical spine noted by Dr. Curry in his note of 5/2/77 were caused by the injury documented in the medical records on 2/1/52." The staff physician offered no other etiology for the neck disorder. These two competing medical opinions are, for the most part, equally persuasive. They are persuasive because they are based on essentially correct facts and thorough review of the claims files. While a neck injury is not documented in the SMRs, the veteran has competently and credibly asserted that such injury did occur. Concerning the competence of this lay evidence, VA regards lay statements to be competent evidence of descriptions of symptoms of an injury, but not the determination of an issue involving a question of medical expertise. 38 C.F.R. § 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, even though the SMRs are silent, this does not mean that the injury did not occur. See also Jandreau v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). In this case, the Board must conclude that the lay evidence presented is credible and ultimately competent. The lack of an SMR documenting the claimed neck injury is not an absolute bar to the claim, especially where the negative medical opinion points to no other source of the current disability. Thus, the evidence remains in relative equipoise on the issue. After considering all the evidence of record, including the testimony, the Board finds that the evidence is in relative equipoise. Because the evidence is evenly balanced, the benefit of the doubt must be accorded to the veteran. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for a cervical spine disorder, to include osteoarthritis and degenerative disc disease is therefore granted. ORDER Service connection for a cervical spine disorder, to include osteoarthritis and degenerative disc disease is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs